The recent case of Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100 (Belle Living) concerned relief sought by Randwick City Council (Council) as the Applicant in relation to a complying development certificate (CDC) and orders issued by the Council to restrain demolition works. The Respondent in the proceedings also sought alternative declarations and orders regarding the CDC, the listing of the dwelling the subject of the proceedings as a heritage item, and an injunction regarding gateway determination with respect to a draft planning proposal the list dwelling as a heritage item.
This case note focuses on the findings of the Court in relation to whether the property the subject of the matter was a “draft heritage item” within the meaning of cl 1.5 of the State Environmental Planning Policy (Exempt and Complying Codes) 2008 (Codes SEPP). The Court also made findings in relation to compliance with the conditions of a gateway determination and any validity of exhibition of the relevant planning proposal, which are not explored in this note.
The central issue in dispute related to the issue of a CDC (by a private certifier) for demolition of a dwelling and the reliance on that CDC to partially demolish that dwelling. In that regard, the dwelling had been the subject of an Interim Heritage Order (IHO) and subsequently a planning proposal prepared by the Council seeking to list the dwelling as an item of heritage significance pursuant to the Randwick LEP. The planning proposal had been issued gateway determination by the Minister and the Council had commenced public exhibition of the planning proposal.
Council identified the “fundamental issue” in the proceedings as whether the property was a “draft heritage item” for the purposes of the Codes SEPP. If the Court found that the property was a “draft heritage item”, Council contended that the development pursuant to the CDC was not complying development as it was proposed to be carried out on land that comprises or on which there is a draft heritage item, and the CDC ought be declared invalid pursuant to s 4.31 of the EPA Act; and demolition works cannot be carried out at the …property as exempt development pursuant to cl 2.25 of the Codes SEPP.
The Applicant in the proceedings issued a cross claim that the Codes SEPP invalidly purported to define the term “draft heritage item”, Council acted unreasonably in proceedings to amend the LEP to list the property as a local heritage item, Council cannot lawfully progress the planning proposal to amend the LEP to list the property as a local heritage item due to Council’s failure to comply with conditions of the gateway determination, and the property nor the dwelling house erected on it is capable of falling within the definition of “draft heritage item” in cl 1.5 of the Codes SEPP.
After lengthy consideration, the Court construed the definition of “draft heritage item” in the Codes SEPP. The Court determined that a “draft heritage item” must be something other than a heritage item identified in an environmental planning instrument”, that “the reference in the definition of “draft heritage item” to the identification of the item in a local environmental plan that has been the subject of community consultation can only be construed purposively, and in context, to include a planning proposal that has been the subject of community consultation, but not made’. The Court found that this “construction is one which affords interim protection to an item whilst its status as a “heritage item” has not been fully determined.” Consequently, the “property is a “draft heritage item” within the meaning of cl.1.5 of the Codes SEPP”. As a CDC cannot be issued in relation to land on which a draft heritage item exists (the Codes SEPP), the CDC was declared invalid.
Further commentary exists within the case in relation to whether there was unreasonableness on the part of Council in relation to “persisting” with amendments to the LEP to include the property as a draft heritage item and failures on Council’s part to observe the requirements of condition 1 of the gateway determination in relation to the content of the planning proposal together with the minimum public exhibition period prescribed in condition 2(a) of the gateway determination (which were held to not render the second planning proposal invalid.
Given the importance and practical implications of this decision, it may be the subject of an Appeal. Watch this space!
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