Land and Environment Court New South Wales Medium Neutral Citation: Hayek v Randwick City Council [2023] NSWLEC 1397 Hearing dates: 10 July 2023 Date of orders: 26 July 2023 Decision date: 26 July 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: 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 217, 19 May 2023 over 21 Baden Street, Coogee, is revoked. (3) The exhibits, other than Exhibits 2, A and B, are returned. Catchwords: INTERIM HERITAGE ORDER – whether the property may, on further inquiry or investigation, be found to be of local heritage significance Legislation Cited: Heritage Act 1977, ss 25, 29, 30 Randwick Local Environmental Plan 2012 Texts Cited: New South Wales Government Gazette, No 90, 12 July 2013 New South Wales, Government Gazette, No 217, 19 May 2023 NSW Heritage Office, Assessing Heritage Significance, 2001 Category: Principal judgment Parties: Joseph Hayek (First Applicant) Karen Hayek (Second Applicant) Randwick City Council (Respondent) Representation: Counsel: N Hammond (Applicant) R Lancaster SC (Respondent) Solicitors: Maddocks Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2023/176982 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 30 of the Heritage Act 1977 (Heritage Act) against the making of an interim heritage order (IHO) by Randwick City Council (the Council) published in the New South Wales Government Gazette, No 217, 19 May 2023 (Government Gazette 19 May 2023) over the property known as 21 Baden Street, Coogee (the property). Issues 1. The Council's contentions can be summarised as: * The IHO was properly based, and the property may, on further inquiry or investigation, be found to be of local heritage significance. * The property meets the threshold for being listed under the Heritage Act as an item of local heritage, as the property satisfies at least three of the requisite criteria under the Assessing Heritage Significance published by the NSW Heritage Office 2001 (Ex 1, tab 22), including historical significance, historical association and aesthetic significance. 1. The Applicant accepts that the IHO was within the Council's power to make. The Applicant accepts that the property is likely to be harmed if the IHO is revoked, as the Applicant has lodged a development application for the demolition of the residential flat building (Ex D). Statutory framework 1. The IHO over the site was published in the Government Gazette on 19 May 2023 (Ex A, tab 1). The IHO will lapse six months from the date that it is made unless the Council passes a resolution before that date, according to the terms of the IHO (Ex A, tab 1). 2. The IHO is made under s 25(2) of the Heritage Act, which is in the following terms: (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. 1. The Council is authorised to make IHOs pursuant to the Ministerial order delegating to certain councils the ability to make an IHO and published in the New South Wales Government Gazette, No 90, 12 July 2013 (Government Gazette 12 July 2013) (Ex A, tab 15). 2. An affected owner or occupier may appeal to the Court against the making of an IHO by a council pursuant to s 30 of the Heritage Act. 3. When the IHO is revoked, the Council is to do or cause the following to be done, pursuant to s 29(5) of the Heritage Act: (a) notice of the revocation of the order is to be published in the Gazette, (b) as soon as possible after the notice of revocation is published in the Gazette, notice of the revocation of the order is to be given to the Chairperson and to each person who appears to the Minister or the council to be an affected owner or occupier, (c) within 7 days after notice of the revocation of the order is published in the Gazette, notice of the revocation of the order is to be published in a manner that the Minister or the council is satisfied is likely to bring the notice to the attention of members of the public in the area in which the item is situated. 1. The requisite criteria under the Assessing Heritage Significance published by the NSW Heritage Office 2001 (Ex 1, tab 22) (the NSW Heritage criteria), are: "Criterion (a) [Historical Significance] 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) [Historical association] An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (c) [Aesthetic/creative/technical achievement] 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) [Social, cultural, and spiritual] 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) [Research potential] An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area). Criterion (f) [Rare] 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) [Representative] 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)." Background 1. In January 2020, the Council invited the community to nominate places that may have potential heritage value (Ex 1, tab 1). The property was nominated. The Council engaged Extent Heritage to undertake a heritage study of the residential areas within the local government area (LGA) (Ex 1, tab 2). 2. On 6 April 2021, the Randwick Local Planning Panel recommended that the property be included as an item of local heritage under Sch 5 to the Randwick Local Environmental Plan 2012, as part of Randwick Comprehensive Planning Proposal No PP-2021-4267 (Planning Proposal). On 12 September 2021, the Department gave its Gateway Determination that the Planning Proposal should proceed, subject to a number of conditions, including that the Council must "provide further justification for the proposed heritage items, including a detailed assessment against the NSW Heritage Office Guidelines, Assessing Heritage Significance 2001 and a statement of significance for each new item…" (Ex 1, tab 6). 3. Around September 2021, the Council engaged City Plan Heritage to prepare detailed heritage inventory sheets for 57 proposed heritage items. The inventory sheet for the property concluded that the proposed item did not reach the threshold for local heritage listing (Ex 1, tab 7). 4. On 22 March 2022, a staff report to the Council recommended the property be removed as a potential heritage item on the basis of the heritage inventory sheet. The Council resolved to keep the property in the list (Ex A, tabs 13 and 14). 5. The Council requested City Plan Heritage to investigate the property again. On 10 August 2022, City Plan Heritage maintained its recommendation that the property should be removed from the list of potential heritage items (Ex 1, tab 10), as follows: "We still maintain our recommendation that the subject flat building has been modified significantly from its original form both externally and internally (being originally single-storey residence then converted into a flat building) and does not meet the threshold for heritage listing. REMOVE FROM THE POTENTIAL ITEMS LIST" 1. On 22 September 2022, the Council returned the Planning Proposal to the Department for assessment and drafting of the LEP. On 9 January 2023, the Department wrote to the Council in relation to the Planning Proposal and stated, in respect of the property, that City Plan Heritage had found that the item did not satisfy the NSW Heritage criteria and there was insufficient evidence that it met the threshold for listing (Ex A, tab 8): "Counter to the Council officer's recommendations, there are three properties proposed to be additional heritage listed as per Council's resolution: 21 Baden Street Coogee… These items were initially identified for further investigation in a 2021 heritage study (by Extent Heritage). Upon further review in 2022 as part of the preparation of the heritage inventory sheets by a separate consultant (City Plan Heritage), it was found that these items do not satisfy the relevant criteria in the Heritage Office manual, Assessing Heritage Significance. The Department forms the view that there is insufficient evidence to demonstrate that these items meet the threshold for listing." 1. The Council commissioned a peer review of City Plan Heritage's assessment (Ex 1, tab 13). Around 22 April 2023, Hector Abrahams Architects provided Council with a report titled "Peer Review of Heritage Assessments for… 21 Baden Street, Coogee…". The report stated that the property met some of the NSW Heritage criteria for heritage listing (Ex 1, tab 15). The report determined that the property meets the threshold for local heritage listing as a place of historical significance, associational significance, and aesthetic significance, under the relevant criteria. 2. On 13 April 2023, the Applicant lodged a development application for demolition of the existing residential flat building and construction of a four-storey residential flat building (Ex D). 3. The IHO was made on 17 May 2023 and published in NSW Government Gazette 19 May 2023 (Ex 1, tab 1). 4. On 23 May 2023, the Council resolved to re-endorse the inclusion of the property as a proposed heritage item (Ex A, tabs 3 and 4). 5. The Applicant submits that the Planning Proposal will be finalised and the LEP amendment made in July 2023. Figure 1: 21 Baden Street, Coogee (Statement of Facts and Contentions, Ex B) Public submissions 1. One objector gave evidence at the commencement of the hearing onsite. In his view, the IHO should not be revoked because the existing building is of heritage significance for its association with Sir Joynton Smith. Expert evidence 1. The Applicant relied on the expert heritage evidence of James Phillips and the Council relied on the expert heritage evidence of Hector Abrahams. 2. The experts prepared a joint report (Ex 4) and gave concurrent oral evidence. Mr Phillips prepared a Heritage Assessment dated June 2021 (Ex C). 3. I accept the agreed evidence of the experts that the property does not meet the threshold for local heritage listing under the criteria (d), (e), (f) or (g). The experts disagree as to whether the property meets the threshold for local heritage listing under the NSW Heritage criteria (a), (b) and (c). Consideration 1. I accept and prefer Mr Phillips' evidence, as follows: * The property is not significant for its association with Sir James Joynton Smith as it was never listed as his address. Joynton Smith has a strong association with the grand house, Baden Baden (also known as Ballamac and Hastings), at the rear of the property and a local heritage item. It is likely the existing building was constructed to provide a steady stream of income to his mistress, who was later his wife, as the property was, for a period, in her name. Further investigation of the Joynton Smith connection will not materially affect the assessment of heritage significance of the existing building. * The building is not a good example of the work of architect ER Justelius and as the original house was irreversibly altered in 1936, there is little fabric able to be interpreted as the work of this architect. * The building is not a good example of the work of SH Buchanan, Cowper and Morgan, and there is nothing in the fabric or features of the building that specifically identifies it as the work of any of these architects and it is not stylistically the work of Buchanan. The extent of involvement of SH Buchanan, Cooper and Morgan in the design of the building is unknown. There is nothing in the building as it stands today that specially identifies it as the work of Buchanan, or any other architect working in the same style. There is no evidence to suggest that the building had any relationship to the Coogee Beach promenade designed by Buchanan. Further investigation of Buchanan's contribution to the design will not make any difference to the heritage significance of the existing building. * The building is not among the outstanding examples of Inter-War flats in the Randwick LGA or a wider catchment. The interior of the building is not of exceptional quality. * The building has to be a "creative work" under criterion (c), not a run-of-the-mill building. 1. The existing building was constructed in two stages, first as a residence in 1925, and converted with substantial alterations to a residential flat building in 1936. It is neither a good example of an Inter-War period dwelling or an Inter-War residential flat building. The existing building is a modest and utilitarian Inter-War residential flat building with some pleasant architectural features. It lacks the well-considered proportions and fine detailing of many of the residential flat buildings built within the LGA or the wider area during this period. 2. The existing building has been altered and is in a poor state of repair. The timber windows in the principal façade facing the street and overlooking Coogee Beach have been replaced with aluminium windows. 3. The heritage assessment of the existing building prepared by Weir Phillips Heritage and Planning and dated April 2023 (Ex A, tab 6) of the existing building is thorough. The heritage assessment concludes that the existing building fails to meet the threshold for heritage listing under the NSW heritage criteria. 4. A number of heritage assessments of the existing building support the proposition that the building does not reach the threshold under the NSW Heritage criteria for local heritage listing. Conclusion 1. I am satisfied, on the basis of the evidence before me, that the Council had the requisite power to make the IHO over the site under s 25(2) of the Heritage Act. 2. I am satisfied, on the basis of the evidence before me, that the existing building does not meet the threshold of any of the requisite criteria for local heritage listing and that the property will not, on further inquiry or investigation, be found to be of local heritage significance. 3. It is therefore appropriate to revoke the IHO, as it has served its purpose. 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 217, 19 May 2023 over 21 Baden Street, Coogee, is revoked. 3. The exhibits, other than Exhibits 2, A and B, are returned. Susan O'Neill 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: 26 July 2023