El-Hage Construction Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1470

Land and Environment Court New South Wales

Medium Neutral Citation: El-Hage Construction Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1470 Hearing dates: 28 October 2015 Date of orders: 19 November 2015 Decision date: 19 November 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. The Interim Heritage Order on Stow-on-the-Wold, 140 Pentecost Avenue, Turramurra, dated 22 May 2015, is revoked. 3. The exhibits, other than exhibits 4, A and C, are returned. Catchwords: INTERIM HERITAGE ORDER: whether the heritage significance of the house and garden is sufficient to warrant local heritage listing; whether on further investigation the item is likely to be found to be of local heritage significance. Legislation Cited: Land and Environment Court Act 1979 Heritage Act 1977 Category: Principal judgment Parties: El-Hage Construction Pty Ltd (Applicant) Ku-ring-gai Municipal Council (Respondent) Representation: Counsel: Mr A. Galasso SC (Applicant) Ms M. Carpenter barrister (Respondent)

Solicitors: McKee Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10531 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of sub-s 30(1) of the Heritage Act 1977 (NSW) (Heritage Act) against the making of an Interim Heritage Order (IHO) on the property of 'Stow-on-the-Wold', 140 Pentecost Avenue, Turramurra (the site) by Ku-ring-gai Council (the Council) on 22 May 2015 (published in the NSW Government Gazette No. 45 dated 22 May 2015, exhibit 3, tab 6). 2. The IHO is made pursuant to sub-s 25(2) of the Heritage Act, as follows: (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 for items in the Council's area by an order made by the then Minister for Heritage on 12 July 2013 published in the NSW Government Gazette No. 90 (exhibit 3, tab 7). The order includes the following relevant conditions for local councils to make IHOs: (1) A Council must not make an 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; (5) An IHO made by a council must contain the following condition: "This Interim Heritage Order will lapse after six months from the date it is made unless the local council has passed a resolution before that date"; 1. On appeal, the Court may order a stay to the IHO, pursuant to sub-s 30(3) of the Heritage Act, or may revoke or confirm the order. The applicant submits that the Court also has the power, standing in the shoes of the Council pursuant to s 39(2) of the Land and Environment Court Act 1979, to grant an exemption to the operation of Part 4 of the Heritage Act for components of the site that are found not to be of heritage significance, pursuant to sub-s 57(3) of the Heritage Act.