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Interim Heritage Orders

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

Overview & Facts

The case of Helm No 18 Pty Ltd v North Sydney Council [2022] NSWLEC 1406 provides relevant considerations a Council may need to consider before issuing an interim heritage order (“IHO”).

The case was in relation to an IHO issued by the Minster in accordance with the Heritage Act 1977 (NSW) (“The Act”). The IHO was issued to the owners of 131 and 133 Holt Avenue, Cremorne (“the Properties”). According to section 26 of the Act, Council does not have to provide notice in its intention to place an IHO. A Council, however, must provide notice once the IHO has been taken into effect; in this instance, being when the Properties and their heritage status was published in the Government Gazette in compliance with section 28(1)(c) of the Act. [...]  READ MORE →

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Clarification on the Meaning of “Land” in Section 57 of the Heritage Act

The 19 June 2019 decision of Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] has assisted in further understanding the definition of ‘land’ within s57(1)(e) of the Heritage Act 1977 (Act). Where s57(1)(e) provides a requirement that approval for development must be obtained “in relation to the land” if it is a State heritage item or is subject to an Interim Heritage Order (IHO).

Meaning in Relation to s57(1)(e)

On appeal from the Land and Environment Court (LEC), the Court of Appeal found that within s57(1)(e) the meaning of ‘land’ refers to the physical part of the land which the State heritage item or IHO applies. This is contrary to the decision in the LEC which defined ‘land’ as the whole cadastral review with a relevant link to the heritage item. Furthermore, all judges disagreed with the LEC which held that the word ‘land’ cannot be determined by evaluating the circumstances within each individual case, but must be applied in an overarching manner to all cases to not detriment of the efficacy of the Act. [...]  READ MORE →