Skermanic Pty Ltd v North Sydney Council

Legislation

1. H Act, as relevantly referred to: 3 Objects The objects of this Act are as follows - (a) to promote an understanding of the State's heritage, (b) to encourage the conservation of the State's heritage, …… 4 Definitions …… harm means - (a) in relation to a building or work - demolish, or (b) in relation to a relic or moveable object - damage, despoil, move or alter, or (c) in relation to a place or precinct - damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct. 4A Heritage significance (1) In this Act - State heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to the State in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. Part 3 Interim heritage orders for items of State or local heritage significance 25 Minister can authorise councils to make interim heritage orders for items of local heritage significance … (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items - (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. 29 Commencement, duration and revocation of IHOs (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. …… 30 Appeal against IHO made by council (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.
2. Ministerial Order 2013: Heritage Act 1977 as amended on 12 July 2013: Authorisation for Local Council to make Interim Heritage Orders: Schedule 1 (lists North Sydney Council) Schedule 2 Conditions for Local Councils to make Interim Heritage Orders (1) A council must not make an Interim Heritage Order (IHO) unless: (a) an environmental planning instrument containing a schedule of heritage items derives from a heritage study and provisions for the management of those items is in force in the Local Government Area; and (b) it has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that: (i) the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance; (ii) the item is being or is likely to be harmed; (iii) the IHO is confined to the item determined as being under threat; and …
3. North Sydney Local Environmental Plan 2013: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a reasonably high level of residential amenity is achieved and maintained. 2 Permitted without consent Environmental protection works 3 Permitted with consent Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Entertainment facilities; Home-based child care; Hostels; Information and education facilities; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Recreation areas; Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Shop top housing
4. NSW Heritage Office, Assessing Heritage Significance, 2001 (Assessing Heritage Significance): Clause 4: NSW heritage assessment criteria An item will be considered to be of State (or local) heritage significance if in the opinion of the Heritage Council of NSW, it meets one or more of the following criteria: Criterion (a) An item is important in the course, or pattern, of NSW's cultural or natural history (of 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 for 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 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. While all criterial should be referred to during the assessment, only particularly complex items or places will be significant under all criterial. In many cases, items of environmental heritage will be significant under only one or two criteria. …
5. It is not contended in these proceedings that the conditions in the Ministerial Order 2013 were not met, or that the IHO was not validly made. I am satisfied that the IHO 3/22 and IHO 4/22 were validly made. The key issues between the parties is as set out in Sch 2 of the Ministerial Order 2013, namely: 1. Section (1)(b)(i): Is the item likely to be found, on further inquiry and investigation, to be of local heritage significance? 2. Section (1)(b)(ii): Is the item being, or is likely to be, harmed?
6. The hearing commenced with an onsite inspection of the 12 cottages (items) and their curtilages. The heritage experts, Ms J Hill for the Applicant, and Ms K Denny for the Respondent, drew the attention of the Court to the various features of each cottage and its curtilage which would support her case. The reports by the heritage experts became exhibits as follows: 1. Ex 3: Heritage Experts Joint Report filed 31 March 2023 for IHO 3/22 sites. 2. Ex 4: Heritage Experts Joint Report filed 31 March 2023 for IHO 4/22 sites. 3. Ex 5: Supplementary Heritage Experts Joint Report filed in Court on 17 April 2023 for IHO 3/22 sites. 4. Ex 6, tab 4 pp 47-221: Parraween Street and the Hayden Orpheum Picture Palace, Cremorne Heritage Assessment by Ms Denny dated October 2022. 5. Ex 8: Parraween Street Cremorne, Heritage Assessment Addendum by Ms K Denny dated 28 March 2023 for the Respondent; 6. Ex 11: s 4A of the H Act, agreed criteria for assessing heritage significance by the heritage experts filed in Court on 21 June 2023. 7. Ex C: Applicants' Bundle 22/315880 (Ms Hill's detailed analysis); 8. Ex D: Applicants' Bundle 22/315906 (Ms Hill's detailed analysis). 9. Ex K: Applicants' 3 Photographs at A4 size. 10. Ex L: Applicants' 4 Photographs of Parraween St dated 1918.
7. The heritage experts agreed that in relation to both IHO 3/22 and IHO 4/22, Parraween Street does not warrant protection as a Heritage Conservation Area (Ex 3: Joint Report of Heritage Experts filed 31 March 2023, par 3 p 8; and Ex 4: Joint Report of Heritage Experts filed 31 March 2023, par 3 p 8 respectively).
8. The heritage experts agreed that the NSW Heritage Council's publication, Assessing Heritage Significance 2001 is the guideline for assessing heritage significance (Ex 4, par 3 p8; and Ex 6 tab 14, pp 536-551), and the heritage experts' specific criteria for assessment of heritage significance applicable in relation to Pt 1 s 4A of the H Act is (Ex 11): Criteria of NSW Heritage Office publication Assessing Heritage Significance (Part 4) Agreed Relevant Values by the Experts(Relevant to which values specified in s. 4A) A Historical significance: Historical B Historical Association significance Historical C Aesthetic significance Aesthetic D Social Significance Social E Research Potential Scientific, Archaeological and Natural F Rarity All of the above G Representativeness All of the above

1. The heritage experts agreed that the "area" referred to in s 4A(1) of the H Act is the Local Government Area of North Sydney (NSLGA).
2. In response to a question as to the extent of modifications to the rear of the cottages in IHO 3/22 and IHO 4/22 - 1. Ms Hill: "I agree at least in relation to the outside toilet being moved inside. The critical aspect of the modifications is to assess the key aspects of Victorian workers' cottages. Modifying at the rear of the building is not usually considered to be modifying key characteristics. Modifying kitchens - these are usually in the rear of the building and it is not surprising that they are modified." 2. Ms Denny: "My observations on the site of the properties is that the properties had been modified to the rear to provide for modern facilities, and this level of modification is found in almost every residential dwelling throughout metropolitan Sydney. For example, toilets outside the properties have been brought inside - in those circumstances it is not surprising that alterations have been made." 3. Although in their Joint Reports (Ex 3 and Ex 4), Ms Hills itemised and photographic evidence in Ex C and Ex D, and Ms Denny's individual reports, referred to the whole of each cottage, the evidence in chief and cross examination focussed on the view of each cottage from Parraween Street. 4. I noted on the site view on 17 April 2023 that the cottages retained the characteristics of the front two bedrooms separated by the hallway to the front door.
3. The heritage experts advised that the cottages could not be considered as a whole within IHO 3/22 or IHO 4/22, and nor could any of the cottages be considered as a group, although clearly some of them were built simultaneously. Each cottage is to be assessed on its own merits as to whether it is "likely" to be of local heritage significance.

IHO 3/22

1. The heritage experts agreed the following in relation to 50 Parraween Street, Cremorne (No 50) Ex 3: p 8: "3. 50, 52, 54 and 56 Parraween St are a group of single storey late Victorian, vernacular cottages, built by the same owner. 4. 50 Parraween St is a vernacular cottage of rendered masonry with a tiled gable roof. The cottage has a front inset verandah, a single storey skillion rear window and skillion laundry addition……with driveway access running along the eastern boundary. The front yard is defined by a timber post and metal balustrade fence on concrete base and includes mixed plantings. … 6. The building retains its scale and simple detailing. 7. 50 Parraween St is an example of vernacular cottage. 8. John Connor is not considered a significant builder. List of Changes - Non original roof finish and removal of chimneys - Non-original fence - Verandah roof form and finish posts and floor are all non-original …"
2. The heritage experts gave oral evidence in relation to 50 Parraween St as follows (Ex 3: p 8): 1. Ms Denny: In relation to the overall form of the property the key characteristics have not been modified - all remain relatively intact. It remains readable as an historical cottage, with the architectural details. The form has been altered at the rear, and is not visible from the street. 2. Ms Hill: The key characteristics remain as to the detail. However, the most important characteristic is the form. The roof finish has been changed as has the front fence and front garden. 3. Ms Denny: The front verandah has been reconstructed. I do not see it as a substantial change to the house. It is easily reversible. The cottage remains readable. The front garden could be restored to an 1890's garden.
3. In relation to 52-56 Parraween Street (52, 54 and 56 respectively), the heritage experts agreed (Ex 3: p 9-10): "4. 52 is the westernmost building of the row of three workers cottages constructed of rendered masonry with corrugated metal gabled roof with two rendered chimneys with terracotta pots. The cottage retains an inset verandah with a four panelled timber front door with fanlight and dentil mouldings to the architrave. … 6. The building retains its original configuration and some of its original detailing. 7. John Connor is not considered a significant local builder. 8. 52-56 Parraween St are a row of three terraces and their typological relationship has been compromised by the first floor addition of 56 Parraween St. List of Changes … - Non-original verandah roof form … 4. 54 is the centre building of the row of three workers cottages. It is constructed of rendered masonry with a corrugated metal gabled roof and two masonry chimneys. The site has an inset front verandah and the front elevation has a rendered finish. A small skillion rear wing survives and a fibrous cement clad skillion laundry addition. … List of Changes - Non original verandah roof form - Non original front door … 4. 56 is the easternmost building of the row of workers cottages constructed of rendered masonry with a corrugated metal gabled roof. The cottage has been extensively altered at the rear… … 6. The front elevation at 56 Parraween St is only partially intact because majority of architectural detailing has been removed. List of Changes - The façade has been reconstructed to accommodate the car space (cast iron brackets and window relocated) - The demolition of a large portion of the site, a two-storey addition uncharacteristic of these buildings …
4. In relation to 70 Parraween St (70) the heritage experts agreed (Ex 3: p 11): "3. 70 is the western half of a pair of semi-detached, single storey, Federation style cottages, built in c. 1908. 4. 70 has an inset front verandah with a timber framed French door with fanlight and louvered shutters. A name plate "Anfield" is attached to the front wall. The original rear wing has been substantially rebuilt. The main body of the cottage remains highly intact… 5. Charles Blackman is not known to be an important developer. List of Changes … - High fence - Paved hard stand to front"
5. In relation to 72 Parraween St (72), the heritage experts agreed (Ex 3: p 11): "3. 72 is the western half of a pair of semi-detached, single storey, Federation style cottages, built in c. 1908. 4. 72 has a projecting bay with painted timber shingle gable front, timber barge board, and a cement tiled awning over the front window on decorative timber styles to its front elevation. There is an inset verandah on its eastern elevation. The original rear wing of the dwelling appears to have been rebuilt and the main body of the house remains substantially intact. …. 5. Charles Blackman is not known to be an important developer."
6. In relation to 78 Parraween St (78), the heritage experts agreed (Ex 3: p 12): "3. 78 is the eastern (sic western) half of a pair of semi-attached, single storey, Federation style cottages build c. 1908, sharing a single hipped, tiled roof, with pedimented shared porch with 80 Parraween St. The original brickwork is painted and it has an inset verandah. 4. 78 has the name place "Araluen" and two, timber framed, double hung sash windows with brick arched window heads to its front elevation. List of Changes - Original tuckpointed face brick has been painted. - The rear wing has been rebuilt and extended - Hardstand car space - Fence removed - Non-original dividing fence
7. In relation to 80 Parraween St (80), the heritage experts agreed (Ex 3: p 12): "3. 80 is the eastern half of a pair of semi-attached, single storey, Federation style cottages, built in c 1908. Sharing a single hipped tiled roof, with pedimented shared porch with 78 Parraween St. The original brick face is painted and have an inset verandah. 4. 80 has a single, timber framed, double hung sash window with brick arched window head. … List of Changes - Original tuck pointed brick face is painted - Front fence removed - Non-original dividing fence - Hardstand car space"

IHO 4/22

1. In relation to 82 Parraween St (82), the heritage experts agreed (Ex 4: p 8): "- 82 has some historical values at a local level as forming part of the earliest phases of residential development of the Parraween Estate (part of the Cooperville Estate lands) - 82 has associations with Helier and Percy Harbutt. Harbutt Brothers undertook extensive residential development in the North Sydney LGA - 82 is one of many cottages that is representative of their work. Their design preferences the Federation style (notably the projecting front bay with gable). List of Changes - hard stand car space - painted face brick - Non-original front fence - Non-original encaustic tile flooring - Non-original front door"
2. In relation to 84 Parraween St (84), the heritage experts agreed (Ex 4: p 8-9): "- 84 has some historical values at a local level as forming part of the earliest phases of residential development of the Parraween Estate (part of the Cooperville Estate lands) - 84 has associations with Helier and Percy Harbutt Brothers. Harbutt Brothers undertook extensive residential development in the NS LGA. - 84 is one of many cottages that is a representative of their work. Their design preferences of applying the Federation style (notably the projecting front bay with gable) - The description of 84 is a good though modest, representative example of a Federation style cottage with Arts & Crafts elements, including projecting front gable with rough cast render to the gable front, and two arched brick window heads over timber sash windows, front verandah with exposed timber rafter eaves, has timber posts with Art Nouveau style brackets and painted concrete flooring, half-glazed, four panel front door with fanlight and single timber framed sash window with arched brick headed window head, four panelled internal doors, picture rails, ceiling roses and two ornate timber fireplaces with original fire surround and hearth tiles. List of Changes - 84, while retaining its original form, has undergone significant change including: - Non original front fence - Non original front garden"
3. In relation to 86 Parraween St (86), the heritage experts agreed (Ex 4: p 9): "- 86 has some historical values at a local level as forming part of the earliest phase of residential development of the Parraween Estate (part of the Cooperville Estate lands) - 86 has associations with Helier and Percy Harbutt. Harbutt Brothers undertook extensive residential development in the North Sydney LGA. - 86 is one of many cottages that is a representative of their work. Their design preferences the Federation style (notably the projecting front bay with gable). … (last 2 points agreed but subsequently withdrawn, therefore not recited) … List of Changes - Carport - Painted face brick - Non original front fence."
4. In relation to 88 Parraween St (88), the heritage experts agreed (Ex 4: p 9-10): "- 88 has some historical values at a local level as forming part of the earliest phases of residential development of the Parraween Estate (part of the Cooperville Estate lands) - 88 has associations with Helier and Percy Harbutt. Harbutt Brothers undertook extensive residential development in the North Sydney LGA - 88 is one of many cottages that is a representative of their work. Their design preferences of applying the Federation style (notably the projecting front bay window with gable). - The description of 88 is a good though modest, representative example of a Federation style cottage with Arts & Crafts elements, including roughcast render with quoin motif, projecting front bay with rendered gable with bullseye vent, rendered arch headed windows, and inset verandah with chamfered timber posts. Internally the main body of the house survives with original details including fibrous cement ceilings, moulded cornices, ceiling roses and skirtings. List of Changes - Hard stand car space - Non original front fence - Reproduction decorative brackets - Reproduction encaustic tile flooring and path - … - Non original render and quoining to façade - Reproduction of finial - Original chimney removed"
5. In their joint reports (Ex 3 and Ex 4) and in their oral evidence the heritage experts consistently disagreed as to whether each cottage, is or is likely to be found on further inquiry or investigation, to be of local heritage significance. In coming to their conclusions the heritage experts applied slightly different tests: 1. Ms Hill: in examination in chief and in cross examination Ms Hill consistently agreed that the key detailed characteristics of the buildings were retained, but that the integrity of each building had been modified to such an extent that the key characteristics of the form of the building meant that each building was not eligible for local heritage listing by Council. 2. Ms Denny: in examination in chief and cross examination Ms Denny consistently agreed that the key detailed characteristics of the buildings were retained, and in applying the criteria (in s 4A of the H Act and the Guidelines) for historical and aesthetic significance, each building was worthy of further investigation to establish whether it was likely to be of local heritage significance in the NSLGA.
6. These two appeals are made pursuant to s 30 of the H Act against the Council's two IHOs - IHO 3/22 and IHO 4/22: 1. IHO 3/22 dated 9 November 2022 and gazetted on 11 November 2022 in respect of 50, 52, 54, 56, 58, 70, 72, 78 and 80 Parraween St, Cremorne (proceedings 2022/351880); 2. IHO 4/22 dated 16 November 2022 and gazetted on 17 November 2022 in respect of 82, 84, 86 and 88 Parraween St, Cremorne (proceedings 2022/351960).
7. Both appeals were commenced on 22 November 2022 in compliance with the time provisions in s 30(2) of the H Act.
8. These matters fall within Class 1 of the Court's jurisdiction pursuant to s 17(e) of the Land and Environment Court Act 1979 (LEC Act).
9. Relevantly, s 25 of the H Act permits a Council, with the Minister's authority, to make an IHO for a place or building that "the Council considers may, on further enquiry or investigation, be found to be a local heritage significance" (Ex 6: p 449) - see par [19] above. In particular I note subs (2) of 25: A council authorised under the 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 enquiry or investigations, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (Emphasis added).
10. In the present case, by Ministerial Order 2013, the Minister for Heritage authorised certain councils (including this Council) power to make IHOs in accordance with s 25 of H Act, subject to Sch 2 of the Ministerial Order. The conditions to which an authorisation is subject constrain a council's exercise of its function pursuant to s 25(2) and Sch 2 of the Ministerial Order 2013. Relevantly, pursuant to Sch 2, a council must not make an IHO unless cl (1) (a) and (b) (i)-(iii) apply. (Ex 6, tab 15, p 554 and par [19] above).
11. The Court has the additional power pursuant to s 39(2) and s 39(3) of the LEC Act as follows: (2) In addition to any other functions and discretions that the court has apart from this subsection, the court shall, for the purposes of hearing and disposing of an appeal, has 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. (3) 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 form the evidence given on the making of the decision may be given on the appeal.
12. Section 4A of the H Act defines local heritage significance: …in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item.
13. In applying Assessing Heritage Significance (Ex 6: tab 14 p 541) an item will be considered to be of local heritage significance if, in the opinion of the Council, it meets one or more of the criteria, and in these proceedings: 1. Criterion (a): …the cultural or natural history of the local area; 2. Criterion (b): … strong or special association with the life or works of a person…. Or the cultural or natural history of the local area; 3. Criterion (c): … in demonstrating aesthetic characteristics .. in …the local area; 4. Criterion (d): …strong or special association with a particular community or cultural group in …the local area for social, cultural …. reasons; 5. Criterion (e): …potential to yield information that will contribute to an understanding of NSW's cultural or natural history… of the local area; 6. Criterion (f): …….or the cultural or natural history of the local area; 7. Criterion (g): … is important in demonstrating the principal characteristics of … a class of the local area's: 1. cultural or natural places; or 2. Cultural or natural environments. 1. I further note the proviso: "In using these criteria it is important to assess the values first, then the context in which they are significant. Decide the appropriate context by considering similar items of local …significance in each of these contexts" (Ex 6, tab 14 p 541). 2. In Chapter 6, (Ex 6, tab 14, p 542) the Gradings of significance grade the item as "Exceptional, High, Moderate, Little, Intrusive". In applying the test in these proceedings, the Moderate significance applies: MODERATE Altered or modified elements. Elements with little heritage value, but which contribute to the overall significance of the item. Fulfils criteria for local … listing.

1. In par [26] above the heritage experts agreed the specific criteria for assessment of heritage significance.
2. "Significant" means important, weighty or more than ordinary: Oshlack v Richmond River Shire Council (1993) 82 LGERA 222; [1993] NSWLEC 210 (22 December 1993) [1993] NSWLEC 3 at [223].
3. The Ministerial Order 2013 relevantly provides that a Council must not make an IHO unless it has considered a preliminary heritage assessment of the item and considers that "the item is or is likely to be found, on further enquiry or investigation, to be of local heritage significance" (Ex 6, tab 15 pp 552-554).
4. The word "likely" means "a real chance or possibility": Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter shire Council and Another (2010) 210 LGERA 126; [2010] NSWLEC 48 at [84] per Preston CJ ("Newcastle Speleological").
5. The H Act does not define what is meant by "further enquiry or investigation". Council submits that the terms are broad enough to include consideration of submissions received by members of the public which may elicit further information which may be relevant to the enquiry - a process which is still to occur as part of the Council's proposed amendment to the NSLEP 2013.
6. Council considers that further research should be undertaken into the history of the Harbutt Brothers and in particular the work of Helier Harbutt; including identifying the location of surviving examples of his early 20th century developments (Ex 6: tab 9 p 240). Submissions by the public may give further information regarding the developments within the NSLGA by Helier Harbutt.
7. The Applicants submit that the voluminous and comprehensive evidence before the Court about the items is such that no further enquiry or investigation needs to be carried out, and that the items are not likely to be found to be of local heritage significance on further enquiry and investigation. The consideration should be limited to the first question: is or are the items of local heritage significance?
8. The Council reminded the Court that the H Act and authorisation do not require a council or the court on appeal to be satisfied that a building or place should become a heritage item as a precondition to issuing an IHO. The Court is not a strategic planning authority. As noted by Pain J in Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 at [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."
9. In regard to the Applicants' submission, the voluminous and comprehensive evidence before the Court about the items is such that no further enquiry is necessary - I further considered: 1. The numerous reports by Ms Denny, including Ex 8 being the Heritage Assessment Addendum. 2. The detailed survey of the cottages and their curtilages by Ms Hill in Ex C and D, and the photographic evidence in Ex's K and L. 3. In cross examination, Ms Hill advised that she was also the heritage expert in relation to the First Applicant's SSD (Ex F). In response to questioning by Counsel for the Council, Ms Hill said in words to the effect: Question: In the SSD, some of the facades of these dwellings are proposed to be retained? Ms Hill: Some of the building facades are to be retained for the character of the street; Question: Not just the character of the streets, it was the historical significance of these buildings? Ms Hill: No, there was already discussion to save the facades. There was no IHO at that time of the discussions. Question: "How did they propose to retain the façade of the buildings? Ms Hill: They were retaining certain character elements of the street. 1. Neither the plans for the SSD, nor the heritage report (if any) prepared by Ms Hill for the SSD, were tendered in evidence.
10. I acknowledge the expertise and experience of Ms Hill, and the respect in which she is held. However, in this matter I prefer the evidence of Ms Denny. Although Ms Denny prepared several reports, each report was prepared, and at times an earlier report amended, when new evidence came to light.
11. The NS Planning Panel made the following recommendation on 19 April 2023: "Furthermore, the Panel is not in a position to provide advice or a recommendation to the Council on the local heritage significance of the dwellings given the contradictory heritage advice that has been provided by council's consultant heritage expert and the Applicant's heritage expert…." (Ex 10: p 8)
12. In the circumstances where the NS Planning Panel recommend an independent peer review of Ms Denny's and Ms Hill's reports, and Ms Hill has given advice in relation to the First Applicant's SSD that certain facades of the items should be retained for the street character, and taking all the evidence into account, I find that the items are likely to be found on further inquiry and investigation, to be of local heritage significance. It is an uncommon situation that on demolition of the buildings as set out in the CDCs (Ex E) which is replaced by a four-storey development over previously existing one storey dwellings (Ex F) that the developer would consider retaining facades of small vernacular dwellings built between the late 1800's and early 1900's without a 'heritage' requirement to do so.
13. In relation to Sch 2 of the Ministerial Order 2013, the parties disagree on the application of cl (1)(b)(ii) - "the item is being or is likely to be harmed". 1. IHO 3/22 expires on 9 November 2023. 2. IHO 4/22 expires on 16 November 2023. 3. Section 29(2) of the H Act provides that an IHO "remains in force for 12 months…" 4. The CDCs for demolition of the items were withdrawn on 5 April 2023. The Applicant relies upon with withdrawal of the CDCs to support its submission that the items are not being or are not likely to be harmed within the relevant time frame. 5. The Council submits that the Applicants' argument should be dismissed. The CDC applications to demolish the items had been lodged (Ex 6, tab 2), and subsequently withdrawn (Ex E). However, the Applicants are free to make a further application if the IHO's are revoked in these appeals. In contrast, Council would be powerless to issue a further IHO if that were to occur (Ex 6, tab 15 p 554, Sch 2, par [2(b)]). 6. The Applicants have also sought and received SEARS for their SSD pursuant to s 177(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The SSD is for demolition and construction of a seniors living development on the subject sites (Ex F). The SEARS remain on foot for two years until 22 October 2024, and pursuant to s 177(2) of the EPA Regulation the Applicants' can seek an extension of that time limit from the Secretary of NSW Department of Planning. 7. These circumstances provide a sufficient basis for me to be satisfied that the items are likely to be harmed, noting "likely" means "a real chance or possibility": Newcastle Speleological Society.
14. Being mindful of the object of the H Act "(a) to promote an understanding of the State's heritage" and "(b) to encourage the conservation of the State's Heritage", and in answer to the issues to be determined: 1. Is the item likely to be found, on further inquiry and investigation to be of local heritage significance? As required by s 25(2) of the H Act, I find the items are likely to be found to be of local historical significance in applying the following criteria from the NSW Heritage Office - Assessing heritage Significance: 1. Criterion (c) as they demonstrate aesthetic characteristics in the local area; 2. Criterion (e) as they have potential to yield information that will contribute to the cultural history of the local area, and 3. Criterion (g) as they as they demonstrate the principal characteristics of a class of the local area. 4. (Ministerial Order 2013, Sch 2 cl (2)(b)(ii)). 1. Is the item being, or is likely to be harmed? As required by s 25(2), I find that without IHO 3/22 and IHO 4/22, the answer is yes.
15. For the reasons set out above, I find that IHO 3/22 and IHO 4/22 have been properly made and now dismiss both appeals pursuant to s 39(2) of the LEC Act.

Orders / Directions

1. In proceedings No 2022/351880, the Court orders: 1. The appeal is dismissed. 2. The exhibits are retained.
2. In proceedings No 2022/351906, the Court orders: 1. The appeal is dismissed. 2. The exhibits are retained.

Amendments 02 August 2023 - Pursuant to the slip rule, Rule 36.17, of the Uniform Civil Procedure Rules 2005, the Decision and orders at paragraphs [65] and [66] of the judgment are amended. 02 August 2023 - Amendment to paragraphs [65] and [66] to correct typographical error. 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: 02 August 2023