IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v North Sydney Council

In a significant win for heritage, the Land and Environment Court has dismissed an appeal by developer Investa Property Group from North Sydney Council’s refusal of a development application for the demolition of the existing heritage listed MLC Building and construction of a new 27-storey commercial building.

The Council argued that the permanent, irreversible loss of the MLC Building would cause significant harm to the environment. It also submitted that the proposed development would be in “fundamental conflict” with the aims in cl 1.2(2) and the objectives in cl 5.10(1) of the North Sydney Local Environmental Plan 2013, which seek to conserve and protect the built heritage of North Sydney.

The Applicant contended that the MLC Building had “reached the end of its design life.” It argued that the public interest in developing the site and the financial burden of refurbishing the MLC Building, would mean that it was “not reasonable to conserve” it. By reference to Section 13.8 of the North Sydney Development Control Plan 2013 (NSDCP), the Applicant also claimed that no “rational user” of the land would likely refurbish the MLC Building, with the consequence that it would be “land banked”.

In her Judgement, Senior Commissioner Dixon found that the community’s expectation, arising from the NSDCP, which references the Burra Charter, was that every effort would be made to retain heritage listed items and that “demolition would only be approved in circumstances addressed both in cl 5.10, particularly cl 5.10(4) and also in Section 13.8 of the NSDCP.” After considering the matters under s 4.15 of the Environmental Planning and Assessment Act 1979, including the public interest and the principles of ecologically sustainable development and intergenerational equity, the Court determined that the Applicant had not satisfactorily demonstrated that conservation of the MLC Building would be unreasonable.

This is an important decision for the preservation of a building that the Court considered to be worthy of retention because of its historical significance.