Land and Environment Court New South Wales Medium Neutral Citation: Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282 Hearing dates: 12 & 13 April 2023 Date of orders: 07 June 2023 Decision date: 07 June 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) The Interim Heritage Order published in the New South Wales Government Gazette No 484 (Local Government) on Friday 14 October 2022 over 3 Berwick Street, Coogee (Lot B in DP 313214) is revoked. (3) The exhibits are returned with the exception of Exhibits A, B, 3 and 5. Catchwords: INTERIM HERITAGE ORDER – appeal against an interim heritage order – interim heritage order made by the Council – the conditions of the Ministerial order authorising the Council to make interim heritage orders are met – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979, s 3.34 Heritage Act 1977, ss 4,4A, 25, 29,30 Land and Environment Court Act 1979, s 39 New South Wales Government Gazette No 484 (Local Government), 14 October 2022 New South Wales Government Gazette, No 90, 12 July 2013 Randwick Local Environmental Plan 2012, Sch 5 Cases Cited: Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 Forte Construction Group Pty Ltd v Inner West Council [2018] NSWLEC 1400 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 at [84] Touma v Randwick City Council [2019] NSWLEC 1395 Texts Cited: Office of Environment and Heritage, Assessing Heritage Significance, September 2022 Category: Principal judgment Parties: Belle Living Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Wright SC (Applicant) M Harker (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2022/337410 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 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 3 Berwick Street, Coogee (the site) by Randwick City Council (the Council) pursuant to s 25 of the Heritage Act. The applicant appeals the making of the IHO and seeks for it to be revoked by the Court. Background 1. Lester Firth and Associates prepared a report titled Randwick Heritage Study in July 1986. This study aimed to identify and record items of heritage significance. As a result of this study 195 items were listed in the then local planning instrument (LEP). 2. The Randwick Heritage Study Specialist Report – Architecture and Townscape was prepared in 1989 by Perumal Murphy Pty Ltd. The objective of this report was to give an overview of the evolution of the municipalities built environment. This study, and the Randwick Heritage Study, were reviewed, and properties were added to Sch 5 of the respective LEP (and thus were listed as having local heritage significance), in 1994, 1998 and 2012. 3. In March 2021 Extent Heritage Advisors completed a comprehensive heritage review of the residentially zoned areas within the Randwick Local Government Area (the 2021 Heritage Review). This review included a call for members of the public to nominate properties to be reviewed for potential heritage listing as part of the project. The 2021 Heritage Review notes that Council received 281 such submissions, of which 86 properties were subsequently investigated. The site was included as part of this process. The 2021 Heritage Review concluded that it should not be recommended for listing on the following grounds: "Modified Inter-war Bungalow. Loss of significant fabric to interior and exterior (eg. Removal of timber trim elements, verandah enclosure) which has significantly affected its integrity and significance. 3 Berwick Street is not recommended for listing." (Exhibit 1) 1. On 30 August 2022, the Applicant lodged a development application for the demolition of the building on the site. 2. On 27 September 2022 the Council resolved to urgently undertake a preliminary assessment of the building at 3 Berwick Street, Coogee to determine if it is found, on further enquiry and investigation, to be of local heritage significance. 3. A preliminary heritage assessment was prepared on 13 October 2022. That assessment concluded that the site was of local heritage significance and meets the threshold for individual heritage listing under criteria (a), (b), (c) and (g) of the criteria for assessing significance listed in Part 4 of Assessing Heritage Significance published by the Office of Environment and Heritage, September 2022 (Heritage Guidelines). 4. On the basis that the development application seeks consent for the demolition of the building on the site the Council has formed an opinion that the item is likely to be harmed. The Applicant accepts this conclusion. 5. The IHO was made over 3 Berwick Street, Coogee (Lot B in DP 313214) and published in the NSW Government Gazette No 484 (Local Government) on Friday 14 October 2022. 6. The Council proposes to list the site as an item of local significance under Pt 1 of Sch 5 of the Randwick Local Environmental Plan 2012 (LEP 2012). To this end, on 13 December 2022, Council resolved to forward the draft planning proposal to the Department of Planning and Environment as delegate to the Minister for Planning requesting 'Gateway Determination' under s 3.34 of the Environmental Planning and Assessment Act 1979. Additionally, Council resolved to exhibit the draft planning proposal following 'Gateway Determination' in accordance with conditions of the Gateway Determination. 7. As a result of the assessment described above at [7], the IHO remains in force for a period of 12 months as per s 29 of the Heritage Act. The site and its context 1. The statement of facts and contentions describes the site and locality as follows: "2.The Site is currently occupied by a single-storey inter-war bungalow dwelling constructed in 1923. The dwelling is built above street level following the topography of the Site that slopes down to the north. The dwelling has a stone base with a later garage opened to the subfloor of the residence. The building functions as a dwelling, but also incorporates a dental practice. There are separate entries for the dwelling and the dental practice. The subject site is currently not identified as a heritage item, nor is it located within a heritage conservation area. 3. The dwelling on the Site is of face brick (now painted) and sandstone (base) construction with a street facing gable roof form with timber detail and gable ventilator with a deep verandah supported by brick pylons with sandstone capping detail. The verandah is asymmetric, with the dwelling accessed via a stone staircase. The verandah has been partially infilled on the eastern side with pairs of double hung timber windows. The western verandah is infilled with timber casement windows and leadlight toplights. The original façade windows comprise timber casement windows with toplights. The dwelling features original stone fencing. 4. The interiors of the dwelling on the Site have been altered to accommodate new bathroom and kitchen facilities. Some of the original features of the dwelling that have been retained include mantel piece in the former lounge, decorative ceiling moulding and details and some internal joinery (doors) throughout. These features reflect typical details of the period. The main living area features some remnant Olde English style joinery including a plate rail; however, it has been overpainted. 5. The Site is located to the south-east of two heritage items. These items are located at 15 and 21 Carr Street respectively. Due to existing built environment and topography, the primary views of these dwellings are from Carr Street. The vicinity items are located on a flat area and are located adjacent to and in proximity to three to four storey apartment buildings and two storey dwellings. The subject site is not visible or has limited oblique views only from the vicinity heritage items due to the apartment building at 1 Carr Street which obscures the subject dwellings from view. 6. The Site is bounded by Berwick Street to the north and Mount Street to the west with a mix of residential development types beyond these two sites including dwelling houses and residential flat buildings." (Exhibit B) 1. The Respondent contends that the site has potential to form a group heritage item with adjoining properties at 1 and 5 Berwick Street. 2. The site is zoned R3 Medium Density Residential under the LEP 2012. Statutory Framework 1. Section 25 of the Heritage Act is in the following terms: 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 (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) 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. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn. 1. "Harm", "item" and "local heritage significance" have the following meaning under the Heritage Act, s 4: Part 1 Preliminary … 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. item means a place, building, work, relic, moveable object or precinct. local heritage significance has the meaning given by section 4A. 1. Section 4A of the Heritage Act, heritage significance, includes the following: Part 1 Preliminary … 4A Heritage significance (1) In this Act— … 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. … (4) The Heritage Council must use only criteria published in the Gazette under this section for the making of decisions as to whether or not an item is of State heritage significance. 1. The Council is authorised to make IHOs for items in the Council's area in accordance with s 25 of the Heritage Act by an order made by the then Minister for Heritage in New South Wales Government Gazette, No 90, 12 July 2013, at 3421-3424 (the Ministerial order) (Exhibit 3). The Council's authorisation is conditional under Schedule 2 to the Ministerial order, as follows: "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 derived 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 … (2) A council must not make an IHO where: … (d) a development consent (other than a complying development certificate), has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force; or (e) a complying development certificate has been granted for the demolition of an existing dwelling and the erection of a new single storey or two storey dwelling house, and the complying development certificate is still in force." 1. It is not contended in these proceedings that the conditions in the Ministerial order were not met, or that the IHO was not validly made. 2. On the following basis I accept the agreement of the parties that the requirements of sections 1(a), 1(b)(ii) and (b)(iii) at Schedule 2 of the Ministerial order are met: 1. an environmental planning instrument containing a schedule of heritage items derived from a heritage study exists under Pt 1 of Sch 5 of LEP 2012 which applies to the whole of the Randwick Local Government Area, satisfying the requirements of Part 1(a). 2. the Council, in making the IHO 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, that assessment being the Preliminary Assessment of Heritage Significance by City Plan Heritage, 13 October 2022, satisfying section 1(b) of Schedule 2. 3. The parties agree, and I accept that given the development application seeks consent for the demolition of the building on the site the Council has appropriately formed an opinion that the item is likely to be harmed. Further, they accept, and I agree, that the IHO is confined to the item determined as being under threat. Part (1)(b)(ii) and (iii) are met. 1. The key issue in dispute between the parties is the matter at section 1(b)(i) of schedule 2 the Ministerial order, namely whether the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance. 2. The Heritage Guidelines list the NSW Heritage assessment criteria as: "Criterion (a): 'An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area)'; Criterion (b): 'An item has a strong or special association with the life or works of a person, a group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area)'; Criterion (c): 'An item is important in demonstrating aesthetic characteristics and /or a high degree of creative or technical achievement in NSW (or the local area)'; Criterion (d): 'An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons.' Criterion (e): 'An item has the potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural and natural history of the local area)'; Criterion (f): 'An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area)'; Criterion (g): 'An item is important in demonstrating the principal characteristics of a class of NSW's - cultural or natural places; or - cultural or natural environments. (or a class of the local area's - cultural or natural places; or - cultural or natural environments.)" 1. Each of the relevant criterion in the Heritage Guidelines have guidelines for inclusion or exclusion of items for consideration in determining whether listing is appropriate. Is 3 Berwick Street of local heritage significance? Or likely to be found to be on further inquiry and investigation? 1. As noted at [1] this is an appeal pursuant to s 30(1) of the Heritage Act. The power of the Court on appeal, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act), is to exercise the functions and discretions that the Council had in respect of the making of the IHO. In re-exercising that function, it is the role of the Court to determine if the necessary threshold tests of the Ministerial order are met (Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 at [56]). 2. Despite some discussion in the evidence to the listing of the site as a group item with 1 and 5 Berwick Street, such a listing is not the terms of the IHO against which the Applicant appeals. Expert evidence 1. The Court was assisted in the proceedings by expert heritage evidence from Mr Stephen Davies for the Applicant and Ms Kerime Danis for the Respondent. 2. In addition, the following assessments of 3 Berwick Street form part of the evidence in the proceedings: 1. The 2021 Heritage Review, Extent Heritage (Exhibit 1) 2. 3-5 Berwick Street Letter of Advice from Extent Heritage as part of the 2021 Heritage Review. This peer review concluded that the site did not meet the threshold for local listing as a heritage item under any criteria in the Heritage Guidelines. (Exhibit 1) 3. Statement of Heritage Impact prepared by Mr Graham Hall, August 2022 which supports the conclusion that the site does not meet the threshold for local listing as a heritage item. 4. Preliminary Assessment of Heritage Significance by City Plan Heritage, 13 October 2022 which concluded: "It is concluded by City Plan Heritage that the inter-war bungalow at 3 Berwick Street in Coogee is of local heritage significance and meets the significance assessment criteria for listing as a heritage item under Part 1 (Heritage Items) of Schedule 5 of Randwick LEP 2012. It is further noted that although each property at 1, 3 and 5 Berwick Street in Coogee meets the threshold for listing individually, their collective interwar heritage values make stronger contribution and add to the environmental heritage of Randwick LGA and therefore they should be listed as a group heritage item to maintain their integrity and appreciation. It is recommended that the Council considers extension of the heritage listing for number 5 Berwick Street to a group listing in a future planning proposal to include properties at 1 and 3 Berwick Street." (Exhibit 1) The Preliminary Assessment of Heritage Significance included a draft statement of significance and inventory sheet for 3 Berwick Street. It concluded that, applying the Heritage Guidelines, the threshold of local significance was met for criterion (a), (b), (c), (f) and (g). 1. Heritage Assessment: 3 Berwick Street by Urbis in March 2023 (Urbis HA). This assessment concluded that the site did not meet the threshold for local listing as a heritage item under any criteria in the Heritage Guidelines. (Exhibit 1) 2. Peer review of the Urbis Assessment at (5) by Weir Phillips, March 2023. Weir Phillips notes their agreement, with the conclusion and methodology of the Urbis Heritage Assessment, stating: "WPHP agrees with these conclusions and supports the recommendation for not listing the building as a heritage item. We consider that the Heritage Assessment by Urbis follows the required methodology and undertakes a thorough assessment and analysis of the existing site conditions. The report provides reasonable evidence-based conclusions, which are supported by the reasons explained above". (Exhibit D) 1. Heritage Assessment: 3 Berwick Street by Heritage 21, March 2023. The assessment concluded that the site did not meet the threshold for local listing as a heritage item under any criteria in the Heritage Guidelines. (Exhibit 1) 1. I note that the experts in the proceedings agree that when applying the Heritage Guidelines, the site does not meet the criteria for local significance under criterion (d) – Social significance, or criterion (e) – Potential Research significance of the Heritage Guidelines. I accept their agreement. 2. The draft inventory sheet for 3 Berwick Street prepared by Ms Danis as part of the Preliminary Assessment of Heritage Significance nominates the property as meeting the threshold for local heritage significance under criterion (a), (b), (c), (f) and (g). These sections of the draft inventory sheet in the Preliminary Assessment of Heritage Significance are extracted below: "Criteria A: Historical Significance The house demonstrates the suburbanisation of Coogee following the subdivision of the nineteenth century estates in the area and the period of prosperity in the Municipality of Randwick following World War 1. 3 Berwick Street also represents Coogee's first purpose built dental surgery from the 1920s with dental surgery and residence that have operated continually as a dental practice for the last 96 years and still functioning as one. Criteria B: Historical association significance. 3 Berwick Street was constructed for Victor Emmanuel Pugliese of Ulan (Dentist) in 1924, the first registered Dentist in the village of Coogee. The house remained in the ownership of Victor's family until 1949, soon after Victor's death in April 1948. Criteria C: Aesthetic significance 3 Berwick Street is a good example of an Inter-war bungalow in Randwick. The house exterior includes face brick and sandstone walls, a prominent gable with half-timbered detailing supported on brick and sandstone columns, a recessed verandah and entrance, and single hung timber windows with Venetian glass. … Criteria F: Rarity The house is a highly intact example of an Inter-War bungalow, including examples of interior fixtures and finishes dating from its construction in c1924. The Inter-War bungalows are now unusual and seldom found in the area and are now 'rare' items in Coogee. Criteria G: Representativeness 3 Berwick Street is representative of the Inter-War suburban residential development constructed in Randwick in the first half of the twentieth century. The residence is also representative of Coogee's first purpose-built registered dental surgery from 1924. …" (Exhibit 1) 1. In the joint report Ms Danis maintains the assertion that Mr Pugliese was the first registered dentist in Coogee and that 3 Berwick Street represents Coogee's first purpose-built dentist surgery. She argues on this basis that the site meets threshold for local heritage listing under criterion (b) of the Heritage Guidelines. I note that in cross examination Ms Danis accepted that further research indicates that a dentist other than Mr Pugliese was registered in 1915 in Belmore Road, Coogee. She however maintains that, after further investigation, it is likely that the site warrants listing under criterion (a) of the Heritage Guidelines on the basis that the building was the first purpose built as a dental surgery and may be the only one of its kind in the Randwick Local Government Area and possible Sydney. Further, she argues that despite the absence of evidence of the original floor plans the 'continuing historical use as dental surgery with subsequent changes to the operational requirements reflect the changes and advancements in the technology of the dental surgery and practice'. (Exhibit 2) 2. On a similar basis to that summarised at [30] Ms Danis argues that the long historical association of the use of the site as a dental surgery for more than 90 years shows evidence of a significant activity in the local area's cultural and natural history. Ms Danis notes in the joint report that "there is a need for further research to establish the importance of Victor Pugliese and the dental surgery practice at 3 Berwick Street within the historical development of Coogee. Importance of Pugliese and the long-standing dental surgery activity cannot be dismissed without further investigation". (Exhibit 2) I also note that in her oral evidence Ms Danis made reference to the public submission of Mr Cunningham whose research identifies that the Pugliese family ran a number of theatres in Sydney and produced early Australian film. 3. Ms Danis argues that the site meets the criteria for local significance under Criterion C, Aesthetic significance of the Heritage Guidelines. Her reasoning is that despite the modifications that have occurred to both the interior and exterior of the building the house displays particular aesthetic and key characteristics of Inter-War bungalows. Those being face brick (now painted), sandstone walls elevated on substantial stone base, sandstone decorative boundary fence, a prominent gable with half timbered gable end and decorative vent supported on brick and sandstone pylons with verandah roof featuring wide eaves with exposed decorative rafters, single-hung and casement windows with some inter-war style leadlight glazing. Internally she notes the characteristics of decorative plaster ceilings, timber picture rails that align with timber door lintels as well as original interwar joinery and fireplace surrounds. Ms Danis notes in the joint report that "there is a need to undertake further fabric analysis to ascertain the degree of intactness and surviving original fabric, which may prove, in further investigation, to be more than the visual/ photographic evidence indicate". (Exhibit 2) 4. Ms Danis argues that the site meets the criteria for local significance under Criterion F, Rarity of the Heritage Guidelines. Her reasoning is that as a result of the pattern of suburbanisation of Coogee, there are few Inter-War stand alone bungalows in Coogee. She notes the listed comparative examples listed in the Urbis HA, but argues inter-war bungalows are a limited building typology in Coogee. Further, she notes that as a group this building type has a lack of protection under LEP 2012. Her research is summarised as: "73. Desktop search of the NSW State Heritage Inventory (SHI) database for buildings of 1920s and 1930s in Coogee revealed only nine heritage items listed under Randwick LEP 2012 with only 5 being Inter-War bungalows. These include 14 Mount Street, 38 Dudley Street, 39 Dudley Street, 45-51 Beach Street (slightly different type) and 69 Beach Street (modified with attic space). 74. Similarly, of the 57 potential heritage items that were investigated as part of the comprehensive LEP review only 11 properties are from the Inter-War period stand-alone bungalows across Randwick LGA. Of these 11 potential heritage items 7 are bungalows that are of similar scale and nature of 3 Berwick Street, Coogee 75. As seen from the examples above, with the exception of adjoining 5 Berwick Street, there are no identifiable Inter-War bungalows in Coogee that are assessed to be of heritage value. Having a number of representative Inter-War bungalows across Sydney does not preclude listing of other Inter-War bungalows that are identified through further heritage studies or nominations by community members Therefore, it is concluded that 3 Berwick Street is one of a few suburban Inter-War bungalows in Coogee" (Exhibit 2) 1. On a similar reasoning to the reasoning below at [36], Ms Danis argues that the site meets the criteria for local significance under Criteria G, Representative value of the Heritage Guidelines as being representative of Inter-War bungalow architectural type. In addition, Ms Danis argues that the site has potential to be representative of a group of items when considered with 5 Berwick Street. 2. In the alternative Mr Davis, consistent with the Urbis HA, argues that the site does not meet the threshold for local heritage listing when assessed against the Heritage Guidelines. 3. In relation to Criterion (a), Historical Significance of the Heritage Guidelines Mr Davis firstly disputes the assertion that the site was the first purpose built dental surgery in Coogee and secondly that Mr Pugliese was the first registered dentist in Coogee. He argues: "The historical use for a dental surgery, even in a continuous capacity is not considered to be of heritage significance. The contemporary use and arrangement for a dental practice does not reflect the historical use, which would have included rooms within the residence. The current usage expanded to two surgeries, work room and offices, in the latter 20th century and in the current arrangement the residential component is restricted to a separate flatette at the rear. Expansion of the dental practice has been to the detriment of the interiors and the legibility of the original arrangement." (Exhibit 2) 1. The development application is supported by the Urbis HIA which notes at section 3.4 that the building was constructed in 1923 and was first occupied by Mr Pugliese. The Urbis HIA noted that he was the first registered practising dentist. 2. Further, he argues that Ms Danis inappropriately seeks to reduce the scale of assessment of significance from the scale of the Randwick Local Government Area to the suburb of Coogee to assist in supporting the claim for significance. Finally, Mr Davis argues that even if further research was able to establish the claims in his view "the title of 'first registered dentist' in Coogee is considered to be of dubious historical importance". (Exhibit 2) Mr Davis concludes that the site does not meet the criteria for historical significance sufficient to warrant listing as a local heritage item. 3. In relation to Criterion (b), Associative Significance, of the Heritage Guidelines in addition to the above, Mr Davis argues that historical research undertaken has not identified Mr Pugliese as a noted contributor to his field, or the local area. Mr Davis notes for example that he is not attributed with specific technical or academic achievements in the field of dentistry or that those achievements are associated with the site. Mr Davis concludes that the site does not meet the criteria for associative significance sufficient to warrant listing as a local heritage item. 4. In relation to Criterion (c), Aesthetic Significance, of the Heritage Guidelines Mr Davies accepts that the building on the site is an Inter-War bungalow. However, he argues it does not meet the threshold for individual listing. He argues the building is firstly, a restrained and generic example of the style, secondly has been impacted by the early partial infill of the verandah, painting of the face brick, internal alterations arising from the dental surgery fit out and finally the retained features are of a typical nature from the period and are not distinctive of the style. 5. Further, in relation to Criterion (f), Rarity, of the Heritage Guidelines Mr Davies disagrees with Ms Danis that the interiors are 'highly intact'. In addition to his evidence summarised at [39], he further notes that the building has undergone contemporary modifications, including separation of the surgery from the rear flat, kitchen and bathrooms have been refurbished, fireplaces have been removed and characteristic joinery has been painted. In response to Ms Danis' assertion of rarity, Mr Davies argues: "67. The dwelling at no. 3 is not rare. Inter-war bungalows are not rare within the Randwick Local Government area (refer contention 1 above). Many such dwellings are already listed within the LGA and additional listings have been proposed as a result of the Extent Heritage Study 2021, including proposed heritage listing of the neighbouring bungalow at 5 Berwick Street. A comparative study prepared by Urbis illustrates good quality interwar bungalows in the Municipality including those within the Dudley Street Heritage Conservation Area (C9) which is characterised by such Inter-War and Federation Bungalows. Similarly, a survey of the immediate area undertaken on the 8th of March 2023 identified a large number of interwar dwellings (see Attachment 8). 68. Assessment of local significance is required to consider the LGA rather than specific suburbs. Limiting the assessment to a suburb or street unfairly limits the sample and infers rarity." (Exhibit 2) 1. Mr Davies concludes that the site does not meet the criteria warrant listing as a local heritage item under Criterion (f) Rarity of the Heritage Guidelines. 2. Consistent with his evidence in relation to Criterion (f), Mr Davies argues that the site does not meet the criteria for listing as a local heritage item under Criterion G, Representative Value. He argues that the dwelling is a generic example of an Inter-War bungalow and does not represent a rare or fine example of the period or typology. Further, he argues that the building does not have its original detailing intact either internally or external, that it has been painted and has undergone external changes that detrimental impact its streetscape presentation. Findings 1. Noting that the key issue in dispute between the parties is the matter at section 1(b)(i) of schedule 2 of the Ministerial order, the Court is required to consider whether "the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance" (emphasis added). 2. I agree with the reasoning of Gray C in Forte Construction Group Pty Ltd v Inner West Council [2018] NSWLEC 1400 at [23] that the use of the word "or" makes it clear that there are two alternate states of satisfaction, at least one of which must be reached in order to satisfy section (1)(b)(i) of schedule 2 of the Ministerial Order. The first is that "the item is… of local heritage significance" and the second is that "the item… is likely to be found, on further inquiry and investigation, to be of local heritage significance". This reflects that the words 'the item is' and 'of' are conjunctive, as are the words 'is likely to be found' and 'to be of'. 3. I therefore accept that, where there is no further inquiry or investigation to be carried out, the role of the Court extends to considering whether the item is of local heritage significance, just as it would for the Council. Is the item of local heritage significance? 1. In considering the competing positions of the heritage experts on the heritage significance of the property, I prefer and accept the evidence of Mr Davies and his conclusion that, applying the Heritage Guidelines, the site does not meet the threshold for local heritage significance. The summary of my reasoning is as follows: * The Heritage Guidelines provide assistance in the process of assessing heritage significance. Part 6 of those guidelines includes a table that particularises the gradings of significance and their correspondence to the criteria being fulfilled either at a state or local level of significance, or; where a grading indicates the criteria is not met and the item should not be listed. I have considered this part of the Heritage Guidelines in weighing the expert evidence and the heritage impact assessments and reports, summarised at [27]. Criterion (a): Historical Significance * I accept that the house is demonstrative of the suburbanisation of Coogee (a significant historical phase). However, in my assessment and application of the Heritage Guidelines, the incidental connection of its use as a dental surgery does not outweigh the two applicable guidelines for exclusion, namely: "- has incidental or unsubstantiated connection with historically important activities; and - provides evidence of activities or processes that are of dubious historical importance." * I adopt and prefer the evidence of Mr Davies summarised at [36] and conclude that the site does not meet the criteria historical significance sufficient to warrant listing as a local heritage item. Criterion (b): Associative significance * The evidence before the Court establishes that 3 Berwick Street was utilised as a dental surgery and may have been purpose built as one. The use was established by Mr Pugliese and was later continued by other dentists. However, I am not persuaded that either of those facts, even if I accept the building was purpose built as a dentist, show evidence of significant human occupation, or demonstrate that the site is associated with a significant event or person to the Randwick Local Government Area. * I note the acceptance of the experts that since the making of the IHO it has been established that Mr Pugliese was not the first registered dentist in Coogee. This factor was relied on in the Preliminary Heritage Assessment to establish the criterion was met at a local level. * In my assessment the site does not meet the criteria for associative significance sufficient to warrant listing as a local heritage item. Criterion (c): Aesthetic significance * The Heritage Guidelines describe items that meet this criteria at a local level as being "an item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in the local area." Reading the criteria in the context of the Heritage Guidelines I am satisfied that Mr Davies evidence that the reference to 'local area' in the guidelines is a reference to the relevant local government area. * I accept that 3 Berwick Street is an example of an Inter-War Bungalow, however it does not in my view meet any of the listed guidelines for inclusion, extracted below. Whilst I accept these guidelines are not exhaustive, I accept the evidence of Mr Davies and the conclusions of the Urbis HA that the dwelling does not demonstrate creative or technical excellence or distinctive aesthetic attributes of the Inter-War bungalow style. "Guidelines for INCLUSION •shows or is associated with, creative or technical innovation or achievement •is the inspiration for a creative or technical innovation or achievement •is aesthetically distinctive •has landmark qualities •exemplifies a particular taste, style or technology" * Further, its use and alteration to facilitate the dental surgery amongst other works have more than temporarily degraded it's aesthetic significance. * In drawing this conclusion, I have not given weight to the modesty of the item or the circumstance of other items with similar characteristics that have already been entered on a statutory list. I accept the reasoning of Horton C in Touma v Randwick City Council [2019] NSWLEC 1395 at [59] that these two matters do not weigh against listing if consideration of the guidelines support local listing. Rather, when applying the guidelines, the site does not retain sufficient distinctive attributes of the Inter-War bungalow style to warrant listing. * In my assessment the site does not meet the criteria for aesthetic significance sufficient to warrant listing as a local heritage item. Criterion (f): Rarity * On a similar reasoning to that detailed in the preceding discussions of criterion (c) I am not persuaded that the site possesses uncommon, rare or endangered aspects of the areas cultural or natural history. I accept the evidence of Mr Davies that, to the extent it is relevant to assess rarity, there are other examples both listed and unlisted Inter-War Bungalows in Coogee and the Randwick local government area. * Rarity is defined by the Macquarie Dictionary as being "rare, unusual or uncommon". The Heritage Guidelines describe the application of rarity as being met if an item is a rare example of a particular architectural style in an area. * To the extent Ms Danis and the Respondent assert that 3 Berwick Street is rare on the basis it is an Inter-War Bungalow purpose built as a dentist room. I am not persuaded that when applying the Heritage Guidelines, the fact of professional rooms within a dwelling at that time was such a rarity that it elevates it to meet the threshold for listing. Criterion (g): Representativeness * Consistent with the preceding findings I am not persuaded that 3 Berwick Street is important in demonstrating the principal characteristics of a class of the local areas built environment. I accept and prefer the evidence of Mr Davis and the conclusions of the Urbis HA that the dwelling does not demonstrate elements or characteristics that meet the guidelines listed for inclusion in the Heritage Guidelines. Further, when categorised as an Inter-War bungalow it does not include, or has lost the range of characteristics of the type. 1. I find that while the site has some historic and aesthetic merit, it does not reach a level that would satisfy any of the relevant criterion of the NSW heritage assessment criteria for inclusion on the heritage schedule of LEP 2012. Is there is further inquiry or investigation to be carried out to determine whether the building is likely to be found to be of local heritage significance? 1. In her evidence, Ms Danis identifies two broad areas of potential further enquiry and/or investigation. The first being the historical importance of the Pugliese family and secondly examination of historical plans of the site and other building historically used by dentists in the suburb to determine if 3 Berwick Street was the first purpose-built dentist in Coogee. 2. I understand the meaning of 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 (2010) 210 LGERA 126; [2010] NSWLEC 48 at [84] (Newcastle & Hunter Valley Speleological Society). 3. As noted by Mr Davies, in her evidence Ms Danis places emphasis on analysis at a suburb level rather than at the scale of the Randwick Local Government Area. As noted at [46], reading the criteria in the context of the Heritage Guidelines I am satisfied that Mr Davies evidence that the reference to 'local area' in the guidelines is a reference to the relevant local government area. This affects the weight I have given to her evidence. 4. In relation to the first area advanced by Ms Danis I am satisfied that sufficient research and investigation has been undertaken to date by qualified professionals (including those studies listed at [27] and the associated community consultation) that if the Pugliese family was of prominence or significance in the Coogee community or in the film industry that information would have been revealed. Further, there is no documentary evidence that establishes that, if they were prominent, that the prominence is linked to 3 Berwick Street, noting the IHO applies to the site. Turning to Mr Pugliese I am not persuaded that there is a real chance or possibility that further investigation would reveal further information on him, his professional association with dentistry or importantly his association with 3 Berwick Street beyond that in the various heritage investigations, reports and public submissions. I note the acceptance of both experts that Mr Pugliese was not the first dentist in the Coogee area. 5. In relation to the second area, I prefer the evidence of Mr Davies. That is, even if additional inquiry and investigation established that 3 Berwick Street was the first purpose built dental surgery in Coogee, the historical use for a dental surgery, even in a long continuous capacity is not considered to be of sufficient heritage significance to meet the criteria at a local level. In my view Ms Danis does not adequately distinguish between an unusual occurrence (such as long term use of a property by a specific medical profession) and something that is of local heritage significance. On this basis I am not persuaded additional enquiry or investigation is warranted. 6. In conclusion applying the principle in Newcastle & Hunter Valley Speleological Society, I am not persuaded by the assertions of Ms Danis and the Respondent that there may be further inquiry or investigation to be carried out, after which the sites may likely be found to be of heritage significance. I am satisfied that the areas of potential investigation she advances are insufficient to meet the requirement of 3 Berwick Street being likely to be found, on further inquiry and investigation, to be of local heritage significance. 7. I am satisfied that the heritage assessments listed at [27] represent a comprehensive assessment of the heritage values of the property. In particular I am satisfied that the Urbis Heritage Assessment and the City Plan Heritage Assessment, while they differ in their conclusions, both have undertaken a detailed heritage investigation sufficient to determine whether or not the dwelling is of local heritage significance. Conclusion 1. I am persuaded that the purpose of the making of the IHO has been satisfied by the completion of additional research and assessment of the property and building at 3 Berwick Street Coogee since the gazettal of the IHO. The research and reports that have been undertaken and provided to the Court in evidence are, in my view, thorough and comprehensive and I am satisfied that any further investigation will not illicit additional information that would change the finding that the item does not reach the threshold for local heritage listing when the Heritage Guidelines are applied. On that basis, it is appropriate to revoke the IHO. 2. In exercising the power of the Court pursuant to s 39(2) of the LEC Act, is to exercise the functions and discretions that the Council had in respect of the making of the IHO. I have given consideration the public interest and the submissions received. However, I remain satisfied that any further investigation will not elicit additional information sufficient to change the finding that the item does not reach the threshold for local listing under the criteria advanced by Ms Danis and the Council. 3. The IHO that applies to the site has served it's statutory purpose in protecting the item while further research was undertaken in regard to the heritage significance of the shop buildings on the site. Having considered all the evidence before the Court, and the submission from the members of the public, I am not satisfied that the property is worthy of local heritage listing. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. The Interim Heritage Order published in the New South Wales Government Gazette No 484 (Local Government) on Friday 14 October 2022 over 3 Berwick Street, Coogee (Lot B in DP 313214) is revoked. 3. The exhibits are returned with the exception of Exhibits A, B, 3 and 5. D Dickson Commissioner of the Court ********** 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: 07 June 2023