[2005] NSWLEC 395
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126
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[2005] NSWLEC 395
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126
Judgment (3 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 30(1) of the Heritage Act 1977 (Heritage Act) against the making of an Interim Heritage Order (IHO) for a property at No.39 Dudley Street, Coogee (the site), by Randwick City Council (the Respondent), on 8 October 2018.
The parties agree that the site is legally described as being Lot B in DP 301192 within the R3 Medium Density Residential zone as described by the Randwick Local Environmental Plan 2012 (RLEP).
The Applicant considers the continuing operation of the IHO to be ill-founded as the building and its surrounds do not meet the relevant criterion set out in the guide to assessing heritage significance published by the Office of Environment and Heritage (Ex C, Tab 5) (Assessing heritage significance) and given that there is an abundance of buildings from the same period which are better examples of the Californian Bungalow style of building, listing the site would frustrate the delivery of the objectives of the zone in which it is located.
The objectives of the R3 zone are expressed in the RLEP as follows:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
• To protect the amenity of residents.
• To encourage housing affordability.
• To enable small-scale business uses in existing commercial buildings.
While it is common ground between the parties that the site is not listed in Schedule 5 of the RLEP as a heritage item, and is not currently located in a heritage conservation area, the Respondent submits that cl 5.10 of the RLEP applies in that it sets out the effect of both listing of an item, and the identification of a heritage conservation area.
At the on-site view, the Court heard public submissions from a number of residents who identified that they lived in the immediate locality. In general, the public submissions were supportive of the work by Council to undertake the heritage study and to gazette the Edgecumbe Estate Heritage Conservation Area (Edgecumbe HCA) with local heritage items.
Public submissions are contained in Exhibit 4 and may be summarised as follows:
1. the loss of Inter War Californian Bungalows has occurred over a prolonged period of time in the area, resulting in the house style being now considered, by residents, to be under threat;
2. the property at No.39 Dudley and No.41 Dudley Street may be considered a similar pair that both display a high degree of intact features, consistent with the interwar period;
3. the properties are representative of the early period of subdivision and settlement in the Coogee area; and
4. owners and occupants of the site have contributed to the local community and some have been of note including Mr James Menary, the builder, Mr Seaton an economic zoologist, and Mr Lipson who was a survivor of the holocaust.
The Court, in the company of the parties and the heritage experts, was taken inside the property at No.39 Dudley Street where original ceilings, joinery and other features such as leadlight windows were evident. The kitchen, bathroom and laundry were agreed to have been substantially modified.
I was also taken to a number of locations within the immediate vicinity of the site, and shown properties that were listed as local heritage items. The heritage experts agreed that a number of the properties that were drawn to my attention were examples of bespoke designed buildings, displaying a complex arrangement of forms, materials and detailing, and executed by skilful builders.
The Court was also taken to No.31 Melody Street, Coogee which the applicant notes has local heritage significance due to a number of features that are unique in the area, including distinctive coloured terracotta shingles to the front gable.
At the commencement of the hearing, the Applicant tendered photographs of other bungalows in Melody Street that are said to be representative of Inter War Californian Bungalows, at Exhibit D.
The evolution of the IHO
The power to make Interim Heritage Orders may be granted to councils by the Minister under s 25 of the Heritage Act. Subclause (2) provides that:
A council authorised under this section may make an interim heritage order for a plane, building, work, relic, moveable object or precinct in the Council's area that the Council considers may, on further inquiry or investigations, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed.
When an IHO is made on a place, building or site, s 57 of the Heritage Act prohibits a person from damaging, altering or demolishing the item the subject of the IHO.
The Minister authorised Randwick City Council to make IHO's in accordance with s 25 of the Heritage Act (Ministerial authorisation) on 12 July 2013, and in accordance with conditions set out in Schedule 2 of the Ministerial authorisation such that the Council must not make an IHO unless it has first considered a preliminary heritage assessment prepared by a person with appropriate heritage knowledge, and if the council considers the item is being, or is likely to be harmed (Ex 1, Tab 2).
Relevantly, the wording of Sch 2(1)(b) is as follows:
(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 experienced employed or retained by the council and considers that:
(i) the item is likely to be found, on further inquiry and investigation, to be of local heritage significance.
…
On 10 August 2018, the applicant lodged a pre-lodgement application form (Ex 1, Tab 3) seeking the demolition of structures located on the site, which the Respondent considered to meet the test of 'likely to be harmed', and so notified the applicant that an IHO was being placed on the site, and published the same in the NSW Government Gazette No.104 on 8 October 2018.
The IHO contained a condition that was identical to condition 5 of the Ministerial authorisation to the effect that the IHO would lapse in 6 months unless Council resolved to place the item on the heritage schedule, or seek inclusion on the state heritage register.
On 27 November 2018, Council resolved to endorse a heritage study undertaken by Council dated 25 October 2018, and to prepare a Planning Proposal to amend the RLEP to list a number of properties, including 39 Dudley Street, as local heritage items.
Subsequent to the endorsement of the above, Council formally considered Recession Motions at a meeting on 11 December 2018 (Ex 1, Tab 13), and again on 2 April 2019 (Ex 1, Tab 17). On both occasions, the rescission motion was lost.
The Randwick Local Planning Panel considered the Planning Proposal at its meeting on 14 February 2019. It supported the amending of Schedule 5 of the RLEP to include a new Edgecumbe HCA, but as there was conflicting heritage opinion on the significance of 39 Dudley Street, the panel recommended that an independent peer review be undertaken.
A peer review report was prepared by Sue Rosen Associates dated March 2019, the authors being Dr Sue Rosen and Dr Roy Lumby. The review recommended that the site be designated a Contributory Item in the Edgecumbe HCA, and that consideration be given to including the site as an individual item in Schedule 5 of the RLEP.
On 26 March 2019, the Respondent resolved to seek gateway approval from the Minister to amend the RLEP to incorporate a heritage conservation area, and to include No.39 Dudley Street as a local heritage item. The department granted approval to the gateway application on 15 May 2019, but declined Council's request to act as the local plan-making authority (Ex 1, Tab 18, page14), imposing four conditions on its approval as following:
1. The planning proposal should be made available for community consultation for a minimum of 28 days.
2. Consultation is required with the Office of Environment and Heritage
3. The time frame for completing the LEP is to be 9 months from the date of the Gateway determination
4. Given the nature of the planning proposal, Council should not be authorised to be the local plan-making authority to make this plan.
The applicant seeks revocation of the IHO
To the Applicant, it is relevant that comprehensive heritage assessments have been undertaken by Lester Firth Architects, on behalf of the Council in 1986 (Ex C, Tab 7), by Peramul Murphy on behalf of Council in 1989 (Ex C, Tab 8), and by Perumal Murphy Wu (PMW Planning) in April 2000. Each of the studies assessed properties across the local government area, and yet did not identify the site as having local heritage significance.
This is not surprising, according to the Applicant, as the property fails to achieve the heritage significance that may be expected of a bespoke, architect-designed structure evident in properties that have already been identified and included in Schedule 5 of the RLEP.
The parties agree that the property was built as part of a development that comprised Nos.37-41 Dudley Street, by James Menary, who was local to the area. However, the Applicant submits that as every house has a builder, that fact does not, of itself, achieve significance on the basis of this association, and neither does the mere fact that a building conforms to an old style mean it meets the criterion required to be listed as a heritage item.
Furthermore, the heritage assessment completed by Mr Oultram on behalf of the Applicant (Ex C, Tab 11) has also been peer reviewed by Mr Stephen Davies (Ex C, Tab 12) and endorsed the conclusions of Mr Oultram which include:
1. 39 Dudley Street is a modest and typical example of a builder built, Californian style bungalow;
2. The property does not meet the Heritage Manual criteria for identification as a place of local significance; and
3. There are no heritage considerations that would preclude its demolition.
On this basis, the Applicant submits that the site does not meet the test set by the Criterion found in 'Assessing heritage significance', and that following substantial research by the Applicant's experts, there is no information likely to come to light that would change the basis on which the site is assessed in relation to its local heritage significance.
Furthermore, considering the numerous heritage studies undertaken, it is inappropriate to now consider the random addition of buildings to Schedule 5 of the RLEP, especially one that the Applicant describes as a modest, typical example of a builder-built Californian style Bungalow.
Finally, the Applicant submits that the Respondent has failed to demonstrate any element of distinction in the property which Mr McEwen SC, for the Applicant, describes as a kind of 'wow factor' that should be evident in order to achieve the threshold of heritage significance.
Even the most recent study, undertaken by Sue Rosen and Dr Lumby (Ex C, Tab 13) in March 2019 was qualified in its assessment of heritage significance, in the Applicant's view, finding that the site did not fulfil a number of the criteria for heritage significance, and only recommended consideration be given to including the site in Schedule 5 of the RLEP.
On those grounds, the Applicant submits that the IHO should be revoked.
Expert evidence
As the appeal relates to the making of an IHO on the property, the matters in dispute relate to whether the site has, or is likely to be found to have, heritage significance. On this matter, the Court was assisted by experts in Heritage, including Mr John Oultram, for the Applicant, and Dr Roy Lumby for the Respondent who conferred prior to the proceedings to prepare a joint expert report (Ex 2).
It is common ground between the experts that the means for assessing heritage significance is found in the Criterion in 'Assessing heritage significance'. Dr Lumby, for the Respondent, considers Criterion (a), (b), (c) and (g) to be relevant, and that it is only required for the site to meet one of these criterion in order to be considered of local heritage significance.
In essence, the first ground of dispute between the heritage experts is whether the property at No.39 Dudley Street should be considered to have local heritage significance because it is representative of the early period of settlement in the Coogee area, or whether it is more appropriate to consider the site to be merely typical and unremarkable, and so lacking in local heritage significance.
Dr Lumby believes that Criterion (a) is satisfied because the property is associated with an important historical phase in the development of Coogee. That is, that after the initial subdivision in the 1880's, development was delayed and it was only later that the area experienced consolidation which was evidenced in the construction of banks, theatres and St Brigid's Parish church close by. It is this period of consolidation in Coogee that is exemplified in the work of James Menary at Nos.37-41 Dudley Street, including the subject site at No.39 Dudley Street.
Mr Oultram is of the view that as Sydney's population expanded at this time, it could be said of any number of 'Californian bungalows' that they represent this period, in support of which Mr Oultram relies on an excerpt from 'Australian House Styles' by Ian and Maisy Stapleton at page 65, and reproduced in the joint expert report on page 8, which suggests the Californian bungalow became a housing style of choice at this time:
"The Californian bungalow proliferated in the 1920's in the well-to-do architecturally-designed versions and in a thousand speculative built smaller imitations."
Mr Oultram considers No.39 Dudley Street to be such an imitation, and describes the design by its builder, Mr James Menary as being typical of an Edwardian cottage on to which a Californian bungalow-style facade was grafted in order to satisfy the market taste of the time. Furthermore, the subdivision pattern of the Edgecumbe Estate is unremarkable, and does not display the qualities common to a planned or garden estate.
The second ground of dispute between the experts is whether there is a strong or special associative significance in the connection between the site and the life of a person of importance to the local area as defined by Criterion (b) of the OEH Guidelines.
In Mr Oultram's assessment, the site is most closely associated with the builder, James Menary, who does not appear in the Australian Dictionary of Biography, and the association with earlier owners, which is outlined in the joint expert report, is best described as incidental. Dr Lumby asserts that insufficient research has been undertaken on the owners of the site to discount any associative significance, and that the public submissions indicate a number of owners of note.
The third ground of dispute between the experts is whether Criterion (c) is satisfied by demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area. Dr Lumby relies on the presence of the word 'or' to suggest that the option of a choice exists in the criterion between a building demonstrating aesthetic characteristics, or demonstrating a high degree of creative or technical achievement. In his view, the property demonstrates the aesthetic characteristics of the relevant period and style, but acknowledges there is not a high degree of creative or technical achievement evident in the property.
The Applicant made submissions in the alternative on the construction of the phrase, submitting that in order to meet the test set by the criteria, a site must achieve the first and second limb, or the second only. Mr Oultram is of the view that No.39 Dudley Street does not meet either test in the Criterion, and when considered alongside other heritage items in Dudley Street, and in the local area, is inferior.
While Mr Oultram agrees that the property displays details consistent with an Inter War Californian Bungalow and a high degree of intactness, he says that should not, on its own, be considered a measure of heritage significance but that it assists in determining the level of significance. Indeed, while the Criterion for assessing heritage significance states that a lack of intactness is a reason to exclude a property from heritage listing, the reverse is not the case. That is, a high level of intactness is not, of itself, a reason to include a property in a schedule of heritage items. The level of heritage significance at State or local levels can only be determined by comparison with other like items. It is for this reason that Mr Oultram compares No.39 Dudley Street, with No.31 Melody Street, which he regards as deserving of listing for its distinctive features described at [9], and with properties Nos.32-34 Dudley Street, and No.36 Dudley Street.
In contrast, Dr Lumby considers Nos.32-34 and No.36 Dudley Street to be better defined as having eclectic, individual characters that are not representative examples of the California Bungalow as depicted in the illustration taken from Australian House Styles, and reproduced on page 11 of the joint expert report. Instead, the illustration could be a sketch of the subject house which, according to Dr Lumby, supports his view that the house demonstrates the principal characteristics of a class of the local area's cultural or natural places or environments as required to satisfy Criterion (g), being the fourth ground of dispute between the experts.
Dr Lumby believes the property is best described as neither an outstanding, nor a modest representation of the characteristics of the inter war bungalow typology, but rather one that demonstrates the principal characteristics of the type as shown in images of Inter War Californian Bungalows that are found in 'A Pictorial Guide to Australian Architecture', and are reproduced on page 14 of the joint expert report. It is with reference to the same images, that Dr Lumby concludes in the joint expert report No.31 Melody Street is not as representative of the Californian Bungalow as No.39 Dudley Street.
In broad terms, Dr Lumby considers the earlier studies that did not identify the site as having heritage significance to be of limited relevance as they were undertaken prior to the adoption of the assessment criteria contained in the guide 'Assessing heritage significance', which had the effect of expanding the Criterion on which significance is assessed. Furthermore, the mere fact that a property is not listed at some point in time does not prevent the item from being added as a result of an assessment being undertaken at a later date. For example, the experts are agreed that No.38 Dudley Street was listed as a local heritage item following a later study.
Consideration
In his closing submissions, Mr McEwen argues that for the Court to dismiss the appeal and decline to revoke the IHO, I must find first that No.39 Dudley Street is distinctive in its own right, and possesses something which sets it apart from other buildings in the area. Furthermore, I am told that heritage listing has consequences of which I must be mindful in making a determination, including that it can place limits on subsequent development that would frustrate the objectives of a zone in which medium density residential development is permitted.
The Applicant also submits that I should recognise the essential purpose of s 25(2) of the Heritage Act has been served. That is, an IHO provides time for enquiry and investigation that may allow an assessment of the heritage significance of a building. Those investigations undertaken by the Applicant and its experts should satisfy the Court that the site is not likely to be considered local heritage significance, and the IHO should be revoked.
However, this appeal does not require the Court to make a determination on whether the site is distinctive, or set apart from other buildings. The Court's power on appeal is set out in s 39 of the Land and Environment Court Act 1979 (LEC Act), and states that I should have regard to the LEC Act or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
Instead, I am required to consider whether further inquiry or investigation is likely to find the site to be of local heritage significance, as set out in the Ministerial Authorisation, and the conditions as stated at [13].
The position adopted by the Court on this provision is helpfully stated by Pain J in Byron Ventilink Pty Limited 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. 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."
Pain J went on to state that the heritage evidence before her Honour suggested that the building the subject of the appeal was likely to be found on further inquiry to be of local heritage significance.
During closing submissions, the parties provided the Court with authorities that were said to be of value in consideration of the evidence, however I note the facts and circumstances of this matter differ in certain respects and that my decision should turn on those facts and circumstances particular to this case.
The Respondent submits that I should regard the term 'likely' to be a like term for 'a real chance or possibility', as established by Preston CJ in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 at [84].
While I acknowledge the Applicant has undertaken research, and sought peer review, I consider it a real possibility, on the basis of the public submissions and the expert evidence, that further inquiry may support a finding that the property at No.39 Dudley Street is of local heritage significance.
I have formed this view for the following reasons:
1. Firstly, while I accept that there may be grander and more bespoke examples of residential buildings from the inter war period in the area, I am not persuaded by the evidence before me, or by a close read of the guide 'Assessing Heritage Significance', that a building should be excluded from being considered to have local heritage significance by virtue of it being modest; or by being similar to items with similar characteristics that may have already been entered on a statutory list, or unless it is a poor example, of being an example of its type.
2. Secondly, I consider it relevant that the submission by Mr Patrick Cunningham contained information about the former owners of the property that was not contested by the Applicant, and yet is not found in the Heritage Assessment undertaken by Mr Oultram, nor in the joint expert report. In particular, Mr Cunningham's submission suggests that Mr Elmo Seaton may have been appointed to a position of consequence that appeared in the NSW Government gazette. While this is not a criticism of Mr Oultram's research, it simply opens the door, in my view, to the real chance or possibility of information coming to light that may support a finding that the property may be of local heritage significance for the associative significance under Criterion (b).
3. Thirdly, I accept the evidence of Dr Lumby that, when assessed against the illustrations of the Inter War Californian Bungalow in the joint expert report, a comparison between No.39 Dudley Street, and Nos.32-34, and No.36 Dudley Street and No.31 Melody Street suggests that the subject site appears to exemplify the Inter War Californian Bungalow, and is agreed to have a high degree of integrity and so could be found to demonstrate the principal characteristics of a class as set out in Criterion (g).
4. Fourthly, I note that a process of further inquiry and investigation is set out, and still to run its course arising from the exhibition of the planning proposal as stated at [19], including public consultation and consultation with the OEH. I also give weight to the decision found in the Gateway determination report (Ex 1, Tab 18) that at the conclusion of the consultation period, the plan-making power is vested in the Department of Planning, and not the Council. The relevance of this being that the final form of the LEP is not the sole preserve of the Respondent.
[2]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The Exhibits are returned, except for Exhibits A, D and 4.
……………………….
T Horton
Commissioner of the Court
[3]
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Decision last updated: 27 August 2019