Zhao v Ku-ring-gai Council

History of the IHO

1. The key points in the chronology of events relevant to this appeal are as follows: 1. The existing dwelling situated on the site and known as "Covington" was previously listed as a heritage item under the Ku-ring-gai Planning Scheme Ordinance 1971 and remained a listed item until the commencement of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEP LC) around January 2013. 2. The effect of cl 1.8(2) of the KLEP LC was to deem all applicable local environmental planning instruments cease applying to the site. At the time of its commencement, "Covington" was not listed as a heritage item under Sch 5 of the KLEP (LC) 2012. 3. The KLEP LC was later repealed and replaced by the KLEP, which remains in force as the local environmental planning instrument relevant in this matter. The KLEP continues to not list "Covington" as a heritage item. 4. On 27 April 2022 the Applicant lodged development application DA0164/22 (the DA) with the Respondent. The DA proposes the demolition of all existing structures and the erection of a residential flat building comprising five residential apartments and basement car parking on the site, broadly consistent with the Zone 4 High Density Residential land use and principal development standards set out in the KLEP. 5. The Applicant's appeal against the deemed refusal of the DA is the subject of separate proceedings in the Court (file number 2022/236188). 6. During the assessment of the DA in June 2022, the Respondent undertook a site inspection of the subject property, including an inspection of the interior of "Covington". 7. After the site inspection, the Respondent prepared a "Preliminary Heritage Assessment" that recommended the making of an IHO. 8. On 26 July 2022, the Council resolved to make an IHO in accordance with the recommendation of the "Preliminary Heritage Assessment". 9. On 29 July 2022, the IHO was published in the Gazette No 348. 10. On 11 August 2022, the Applicant commenced these proceedings appealing against the making of the IHO.

The making of an IHO

1. The process for making an IHO is set out in a series of statutory provisions.
2. Section 25 of the Heritage Act relevantly provides that the: Minister can authorise councils to make interim heritage orders for items of local heritage significance (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)… (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. (5)…
3. Giving force to s 25(1) of the Heritage Act, the Minister has published an order in Gazette No 90 on 12 July 2013 (the Ministerial order), which authorised a number of councils, including the Respondent, to make an IHO for items in their respective local council areas.
4. In the particular context of this matter, the Respondent's authorisation is conditional under Schedule 2 of the Ministerial order 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 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…"
5. Of further relevance, ss 4 and 4A of the Heritage Act define a number of terms, including "harm" and "local heritage significance", which are given the following meanings: At s 4 Definitions: harm means - (a) in relation to a building or work - demolish… At s 4A Heritage significance: 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.
6. In accordance with s 29 of the Heritage Act, an IHO takes effect on the date of its publication in the Gazette and thereafter it remains in force for "12 months or such shorter period as may be specified in the order, unless it is revoked sooner." In the circumstance of this matter, the IHO was published and took effect from 29 July 2022.
7. The Applicant may appeal the making of an IHO pursuant to s 30 of the Heritage Act, which sets out that: 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.
8. The Applicant's appeal against the making of the IHO is heard in the Court's Class 1 jurisdiction pursuant to s 17(e) of the Land and Environment Court Act 1979 (LEC Act).
9. In hearing this appeal, s 39(2) and 39(3) of the LEC Act provide that: …the Court shall, for the purposes of hearing and disposing of an appeal, have 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. 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.

The issues

1. The single contention pressed by the Applicant in this matter can be found in the Amended Statement of Facts and Contentions, and is set out as follows: "The IHO should be revoked pursuant to s 30 of the Heritage Act 1977 (NSW) because the building on the Site is not, and upon further investigation cannot be found to be, of local heritage significance. Particulars (a) The building on the Site does not have significance to the local area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. (b) The building on the Site is not important in the course, or pattern, of NSW's cultural or natural history, nor the cultural or natural history of the local area; (c) The building on the Site does not have 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, nor the cultural or natural history of the local area; (d) The building on the Site is not important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW; (e) The building on the Site does not have strong or special association with a particular community or cultural group in NSW or the local area for social, cultural or spiritual reasons; (f) The building on the Site does not have potential to yield information that will contribute to an understanding of NSW's cultural or natural history, nor the cultural or natural history of the local area; (g) The building on the Site does not possess uncommon, rare or endangered aspects of NSW's cultural or natural history, nor of the cultural or natural history of the local area; and (h) The building on the Site is not important in demonstrating the principal characteristics of a class of NSW's cultural or natural places, or cultural or natural environments, nor a class of the local area's cultural or natural places, or cultural or natural environments."
2. In his opening submissions, Mr Robertson indicated the Applicant also sought to contend that the IHO does not meet the test established by Sch 2 par 1(b)(i) of the Ministerial order - which in the context of this matter requires that the dwelling: "…is likely to be found, on further inquiry and investigation, to be of local heritage significance…".
3. The introduction of an additional contention precipitated some discord in the confines of a single-day hearing.
4. The Respondent noted that the Ministerial order was not identified in the proceedings until the Applicant's Exhibit C was filed on 13 October 2022. As a consequence of its late introduction, the heritage experts had jointly conferenced only on the central question framed within Contention 1 and not the new contention as framed by the Applicant in opening.
5. The Respondent sought an adjournment to allow the heritage experts to jointly conference on this new contention - an application I refused for reasons stated at the time and elaborated below.
6. In determining to proceed with the hearing forthwith and within the constraint of a single-day allocation, I am satisfied that the two contentions effectively frame the same central question, only in slightly different ways.
7. Contention 1 frames the question in terms such that the existing dwelling: "…is not, and upon further investigation cannot be found to be, of local heritage significance."
8. Whereas the new contention frames a similar question, albeit in negative terms, seeking to reject the proposition that the existing dwelling: "…is likely to be found, on further inquiry and investigation, to be of local heritage significance…"
9. Bolstering the decision to proceed without adjournment, I am satisfied the Court would benefit from the oral evidence in chief of the heritage experts, who were each cross examined on these two versions of the central question at issue.

The evidence

1. The Court was assisted by experts in heritage, who conferred to prepare a joint report. The experts are Mr James Phillips (heritage specialist) for the Applicant and Ms Vanessa Holtham (architect and heritage consultant) for the Respondent. Their joint expert report forms Exhibit 2 in these proceedings.
2. In the joint report, Mr Phillips and Ms Holtham set out their respective positions relative to Contention 1 and generally agree with the chronology of events leading up to the making of the IHO set out earlier in this judgment.
3. In her oral evidence, Ms Holtham explained she had not undertaken extensive research into the potential significance of the dwelling, but after conducting her site inspection in June 2022 had determined that a series of intact interior features evident at the dwelling suggested a likelihood of local significance and warranted further investigation.
4. The features Ms Holtham observed during the site inspection include: 1. Silkwood panelling throughout the more formal rooms of the dwelling. 2. Direct, internal access to the lower-level garage. 3. A high degree of integrity evident in door and window hardware. 4. The sympathetic nature of non-original alterations and additions.
5. In his oral evidence, Mr Phillips similarly noted that he had not undertaken extensive research into the potential significance of the dwelling, but that his preliminary inspection suggested the items referred to by Ms Holtham were "not that remarkable" and were not likely to meet the threshold of significance anticipated of a locally listed heritage item.
6. At p 4 of the joint report, Ms Holtham references her "Preliminary Heritage Assessment" prepared following her site inspection in June 2022. This assessment is included in the joint report at p 39 and is repeated in full below: "The existing dwelling at 10 Park Crescent, Pymble, known as 'Covington' was designed by D.T Morrow and Gordon to suit the slope of the subject site. Morrow and Gordon (former Morrow and de Putron) are known for buildings such as the Grace Building on the corner of York and King Street and the Grace Bros. Building, which is located on Broadway. Constructed c1935, the subject dwelling has aesthetic significance as an interwar style dwelling with Old English and Mock Tudor influences. Whilst having undergone some changes, such as tasteful enclosure of the front verandas, it remains largely intact within its setting opposite Robert Pymble Park. However, internally it retains key characteristics, which are noteworthy and not all evident from the exterior. These include tapestry glass to internal and external doors and windows, as well as intact matching Queensland Walnut internal doors, throughout. In addition, the decorative recessed central heating system and unique grilles with motif matching the door motifs remains intact and is also of particular technical interest. The unique open and closed plan arrangement of living spaces are divided by glass sliding doors. There are a number of other significant features in these spaces including what appears to be original and intact Silver silkwood horizontal and vertical wall panelling, bespoke corner window and window seat and synthetic stone fireplace carved with Australian motifs. The combination of these intact internal elements existing within a relatively modest dwelling designed by such notable architectural firm in the mid-1930s is likely to be relatively rare within the Ku-ring-gai Local Government Area, however this would need to be verified by an internal comparative analysis of similar dwellings. Recommendation As it is now under threat of demolition and new information has come to light in relation to the current condition of Covington's internals, it is recommended that an Interim Heritage Order be placed over the dwelling. This would be a temporary measure to allow a more detailed assessment to be undertaken to determine if the dwelling, including its internals, warrants protection as a heritage item."
7. On the basis of this "Preliminary Heritage Assessment", at p 4 of the joint report Ms Holtham sets out her view that subsequent to: "…a comprehensive heritage assessment, the property may be found to be of local heritage significance and may meet the threshold for heritage listing on Schedule 5 of the Ku-ring-gai Local Environmental Plan in accordance with Section 25 (2) of Heritage Act 1977."
8. Returning to oral evidence, and under cross examination, Mr Phillips accepted that the ultimate test for listing the dwelling as a heritage item is dependent upon further detailed heritage investigation. He also accepted that based on such further investigation, it was possible the dwelling "may" be found to be worthy of listing, however he offered his view that the currently available evidence does not support this conclusion.
9. This view is elaborated by Mr Phillips at pp 4-5 of the joint report, where he sets out his view that the available heritage investigations, including a City Plan Heritage Report dated 29 June 2006 procured by the Respondent, do not support the heritage listing of the dwelling: "The available reports indicate the subject property may not reach the threshold for listing for the following reasons: (a) The City Plan Heritage Report of 13 June 2006 notes that as a building by Morrow and Gordon or later by Morrow and De Putron, "the subject dwelling pales in comparison to the architectural excellence set by buildings such as The Grace Building, The AWA Building, Greenway Flats, Grace Brothers Broadway and Babworth House." (b) It further notes, "in contrast to other excellent quality buildings of the style and period the proportions are unimaginative and simple, detailing such as gable ends, brickwork, leadlight windows and joinery is not dissimilar to commonplace speculative dwellings of the period." Further stating, "it should represent, or move towards a culmination of stylistic precedents to be considered significant." (c) The report cites sixteen buildings of greater quality in the immediate vicinity of which 7 are listed at that time."
10. Of particular note, Mr Phillips summarises his position at p 5 of the joint report, where he states: "Following the undertaking of a comprehensive heritage assessment, the property may be found to be of local heritage significance and meet the threshold for heritage listing on Schedule 5 of the Ku-ring-gai Local Environmental Plan in accordance with Section 25 (2) of Heritage Act 1977, however, the evidence presented so far does not indicate this."
11. Under further cross examination, Mr Phillips accepted that there were now known to be several features evident within the interior of the dwelling that were "worthy of investigation".
12. Finally, when it was put to Mr Phillips that ongoing changes to the character of the local area - particularly renewal reflective of the underlying land use zoning - might contribute to an increase in the rarity of dwellings such as "Covington", Mr Phillips countered that the more likely result of urban intensification in the vicinity of the existing dwelling would be the diminution of its heritage values and significance.
13. In further oral evidence, Ms Holtham noted that all earlier heritage assessments of the dwelling (including the 2006 City Plan report recommending that heritage listing not be made) were limited to external investigations.
14. Ms Holtham summarised her reasons for recommending the making of an IHO as being attributable to a combination of the dwelling's recently appreciated interior features, the dwelling's authorship by noted architects of the era, and - to a degree - the exterior architectural character and expression of the dwelling.
15. These points are amplified at p 6 of the joint report, where Ms Holtham states: "It is reiterated that the preliminary assessment was prepared following an inspection of the internals of the house. This internal inspection revealed a level of integrity that, when combined with its external representation of an Interwar old English style dwelling, in my opinion, warranted further investigation. Considering the significance of its architects Morrow and Gordon, and the increasing rarity of intact and unique internals in domestic homes, the IHO is sought as a temporary measure to enable further investigation prior to the dwelling's demolition. An independent consultant has been engaged by Council to undertake a heritage assessment of the property, which will be available imminently. The findings of this report in relation to any significance associated with the dwelling are unknown at this stage."

Findings

1. I now move to dismiss the appeal. In deciding this course, I set out my reasons in the following paragraphs.
2. Firstly, it is useful to link the dispute to two steps in the administrative decision-making process: 1. Whether or not (pursuant to s 30(1) of the Heritage Act) the making of the IHO should be revoked because the Court is satisfied the existing dwelling "…is not, and upon further investigation cannot be found to be, of local heritage significance." 2. Whether or not (pursuant to Sch 2 par 1(b)(i) of the Ministerial order) the making of the IHO should be revoked because the Court is not satisfied the existing dwelling "…is likely to be found, on further inquiry and investigation, to be of local heritage significance…"
3. In the first instance, I reject the Applicant's contention that the existing dwelling "cannot" be found to be of local heritage significance.
4. In the second instance, I find that it is entirely "likely" the existing dwelling will be found to be of local heritage significance.
5. In determining these two questions, I am also satisfied that in originally making the IHO, the Respondent has appropriately applied all relevant statutory tests and there is no basis for the revocation of the IHO.
6. I note that in their oral evidence, the heritage experts accepted that neither had undertaken the detailed heritage investigation necessary to determine whether or not the dwelling is of local heritage significance.
7. This is not a particular weakness or omission of either expert, and ultimately is of no moment in the context of this matter. The central purpose of the IHO - once properly made - is to protect a building from harm whilst its potential local heritage significance is determined.
8. As noted earlier in this judgment, at p 6 of the joint report forming Exhibit 2 in this matter, Ms Holtham relevantly states: "An independent consultant has been engaged by Council to undertake a heritage assessment of the property, which will be available imminently. The findings of this report in relation to any significance associated with the dwelling are unknown at this stage."
9. In a similar vein, at p 5 of the joint report, Mr Phillips states: "Following the undertaking of a comprehensive heritage assessment, the property may be found to be of local heritage significance and meet the threshold for heritage listing on Schedule 5 of the Ku-ring-gai Local Environmental Plan in accordance with Section 25 (2) of Heritage Act 1977, however, the evidence presented so far does not indicate this."
10. In oral evidence responding to the question I put to the experts, Ms Holtham indicated she felt it was "likely" the dwelling would be found to be of local heritage significance, while Mr Phillips conceded it "may".
11. In closing submissions, Mr Stafford for the Respondent directed the Court to the decision of Pain J in Byron Ventilink Pty Limited v Byron Shire Council [2005] NSWLEC 395 (Byron Ventilink), where at [56] her Honour, when presented with a similar question, found: "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…of the Minister's order…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…"
12. I am satisfied that the current circumstance of this matter closely resembles the question answered by Pain J in Byron Ventilink and it therefore forms a relevant authority.
13. I am also satisfied that in the circumstance of this matter, adequate evidence has been provided by the Respondent to indicate that it is reasonably "likely" the existing dwelling would be found - upon further investigation and in due course - to be of local heritage significance.
14. In closing for the Applicant, Mr Robertson submitted several reasons why the Court should revoke the IHO: 1. The Court should not find the dwelling to be of local heritage significance since no expert has suggested this to be the case. 2. The Court should not find the dwelling is likely to be found on further inquiry and investigation, to be of local heritage significance, since no further inquiries or investigations are reasonably required to assess the heritage significance of the dwelling. 3. The information and evidence currently before the Court is sufficient to find the dwelling is not of local heritage significance. 4. Even if further enquiries or investigations are underway, the information and evidence before the Court is sufficient to find the dwelling is not of local heritage significance.
15. I am satisfied these reasons do not carry sufficient weight in the circumstance of this matter, and to the extent it is relevant to the central questions of the case, I prefer the evidence of Ms Holtham.
16. In the final determination of this matter, I find: 1. As required by s 25(2) of the Heritage Act, I am satisfied the existing dwelling "Covington" faces a threat of harm since the DA proposes demolition of all structures on the site. 2. As required by s 25(2) of the Heritage Act, I am satisfied the existing dwelling "Covington" may be found to be of local heritage significance. 3. As required by Sch 2 par (b) of the Ministerial order, I am satisfied a preliminary heritage assessment of the existing dwelling has been prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council. 4. As required by Sch 2 par 1(b)(i) of the Ministerial order, I am satisfied the existing dwelling "Covington" is likely to be found to be of local heritage significance.
17. For the reasons set out above, I find the IHO has been properly made and now dismiss the appeal.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. The exhibits, other than 2 and A, are returned.

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: 23 December 2022