Posted on September 27, 2022 by Katie Mortimer and Megan Hawley 9

Interim Heritage Orders & Merit Appeals

The Land and Environment Court has recently determined a number of merit appeals against the issue of interim heritage orders (IHOs) by local councils.

These decisions serve as a useful reminder of the circumstances that must exist for a council to issue an IHO, and when the Court is likely to uphold the order.

Interim Heritage Orders 

The purpose of an IHO is to temporarily protect an item that is not otherwise protected by State or local heritage listing to afford time for further investigations and any consequent heritage listing to occur.

An IHO is an order issued under Part 3 of the Heritage Act 1977 (Heritage Act) in respect of a ‘place, building, work, relic, moveable object or precinct‘, and it prevents a person doing any of the things listed in section 57 of the Heritage Act to the item, without an approval including:

• demolishing the building or work;
• damaging or despoiling the place, precinct or land, or any part;
• carrying out any development in relation to the land on which the building, work or relic is situated;
• altering the building, work, relic or moveable object.

IHOs can be issued by either the Minister administering the Heritage Act, or local councils who have been authorised by the Minister.

The Minister may make an IHO for a place, building, work, relic, moveable object or precinct that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance.

A local council (authorised by the Minister), may make an IHO 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.

A council can only issue IHOs in accordance with the conditions of the authorisation conferred by the Minister. The current authorisation for councils is an order which was gazetted in 2013  (Ministerial Authorisation).

Appeals to the Land and Environment Court 

There is a right of appeal to the Court against an IHO made by a local council. There is no right of appeal against an IHO made by the Minister.

When determining such an appeal, the Court has all the functions and discretions of the council who issued the IHO. The Court determines whether the IHO should remain in force or be revoked on the state of affairs existing at the time the Court hears the matter. The Court can receive fresh evidence in addition to, or in place of, the material originally before the council when it made the IHO.

The Court is bound by the conditions of the Ministerial Authorisation, and in determining an appeal, is required to determine if those conditions are met.

In the three decisions we discuss in this post, key issues for the Court’s determination were whether the relevant item the subject of each IHO was:

• likely to be found on further inquiry or investigation, to be of local heritage significance, and
• likely to be harmed.

Likelihood of Harm

Beaches Capital Ventures Pty Limited v Wingecarribee Shire Council [2022] NSWLEC 1504

This appeal concerned an IHO issued over land in response to the lodgement of development applications which would have harmed the items potentially of significance.

However the land was sold, and the new owner, the applicant in the proceedings, withdrew the applications.

The key issue for the Court to determine was whether the item the subject of the IHO was likely to be harmed.

The Applicant submitted that as it had withdrawn the development applications, the circumstances had changed from when the Council issued the IHO (when there was a risk of harm), such that there was not longer any likelihood of harm, and consequently the Court had no power to uphold the IHO.

Commissioner O’Neill disagreed, finding that the item was likely to be harmed if the IHO was revoked. The Court agreed with the Council’s submissions that despite withdrawal of the development applications, the land remained at a risk of harm as a complying development certificate could approve development on the land.

Whilst this may appear to be an unusual conclusion, given that a complying development certificate (CDC) could be applied for at any time over any land, arguably making all items at risk of harm, key to the Court’s reasoning was a condition of the Ministerial Authorisation.

The Ministerial Authorisation prohibits a council from making a fresh IHO where it has previously placed an IHO on an item. Given this, if the Court revoked the IHO, it would be open to the Applicant to lodge a new DA or apply for a new CDC. In those circumstances the Council would have no ability to make an IHO protecting the land. Due to this, the Court considered that the risk of harm to the land continued to exist, despite the changed circumstances from what first empowered the Council to issue the IHO.

The IHO was upheld.

Likelihood to be found on further inquiry or investigation to be of Local Heritage Significance

Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406

This appeal concerned an IHO issued over land at 131 and 133 Holt Avenue, Cremorne containing a pair of Victorian semi-detached dwellings. A development application had been lodged proposing demolition of the dwellings. This DA and receipt of a preliminary heritage assessment caused the Council to make the IHO.

Subsequently Council received a detailed heritage assessment recommending the land be listed as local heritage items.

The Applicant in the proceedings argued that the dwellings did not reach the threshold for inclusion as local heritage items.

The Court heard heritage evidence for both parties, concerning whether the dwellings met the criteria for heritage listing. The Court ultimately agreed with the Applicant’s heritage expert that the dwellings did not provide a good example of Victorian or Federation period architecture, and that on further investigation, the items were not likely to be found and did not reach a level for heritage listing. The Court revoked the IHO.

Acting Commissioner Sheridan stated in her reasoning that she was, ‘satisfied that any further investigation will not illicit additional information that would change the finding that the items do not reach the threshold for local heritage listing. On that basis, it is appropriate to revoke the IHO.’

Holt Avenue Cremorne Pty Ltd v North Sydney Council [2022] NSWLEC 1428

This appeal concerned an IHO issued over land at 115, 117 and 119 Holt Avenue, Cremorne (in the vicinity of the sites the subject of the Helm No.18 proceedings). The sites contained a group of detached Federation era Bungalow style houses. Development applications had been lodged proposing demolition of those buildings.

As in Helm No.18, the DAs and receipt of a preliminary heritage assessment caused the Council to make the IHO.

The Court heard heritage evidence from experts for both parties, assessing the houses against criteria to determine heritage significance. The Court also received a determination from the Council’s Local Planning Panel at the close of the hearing, recommending that eight properties (including the three the subject of the appeal), be the subject of ‘a more thorough and lengthy inquiry to fully review and reconcile whether these 8 properties warrant being listed as heritage items and meet the necessary threshold for heritage listing‘.

The Court ultimately found that there may be further inquiry or investigation to be carried out, after which the sites may likely be found of heritage significance. Commissioner Horton formed that view as he accepted aspects of the Council’s heritage evidence, relevantly that the sites may achieve rare or representative status within the local government area, making them consistent for inclusion as heritage items.

Key Takeaways 

The decision in Beaches Capital Ventures furthers the concept of ‘harm’ from that defined in the Heritage Act, and creates a precedent for local councils to argue in appeals that though circumstances have changed from what existed when an IHO was made, the Court should still uphold an IHO in order to protect an item, given a further IHO cannot be lodged if new circumstances presenting the risk of harm arise.

The decisions in Helm No. 18 and Holt Avenue Cremorne are reminders that to make an IHO, a council need not be satisfied that an item actually warrants heritage listing, but rather that the item may be likely, on further inquiry or investigation, to be found to be of local heritage significance.

You can read the decisions the subject of this post at the links below:

• Beaches Capital Ventures Pty Limited v Wingecarribee Shire Council [2022] NSWLEC 1504
• Helm No. 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406 
• Holt Avenue Cremorne Pty Ltd v North Sydney Council [2022] NSWLEC 1428

If you wish to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Megan Hawley on 8235 9703.