Interim Heritage Orders: s 25(2) Heritage Act 1977
12 January 2023
Zhao v Ku-ring-gai Council [2022] NSWLEC 1729
Recently, we successfully acted for our Council client in a case that clarifies the test for making an Interim Heritage Order (IHO). This is an important reminder that an IHO is just an interim measure to enable investigation of heritage issues, not the final determination as to whether a building or place should be heritage listed.
The appeal was commenced under s 30 of the Heritage Act 1977, against Council’s making of an IHO, which was gazetted on 29 July 2022 under s 25(2) of the Heritage Act (Ministerial Order) for a 1930’s residential property in Pymble (Site).
The Applicant sought to have the IHO set aside on the basis that the existing dwelling on the Site “is not, and upon further investigation, cannot be found to be of local heritage significance”.
The Council submitted that the question for the Court was simply, whether in applying s 25(2) of the Heritage Act, the appeal ought be dismissed with the effect that the IHO is upheld or whether the appeal ought be upheld and the IHO set aside.
Section 25(2) of the Heritage Act provides:
(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.
Under s 25(2) the Council was empowered to make an IHO for a building or place as an interim or temporary measure to protect the building or place from harm, if it formed the opinion that that building or place may, on further enquiry or investigation, be found to be of “local heritage significance”.
It can be inferred from the fact that s 25(2) contemplates further investigation, that the decision maker is not required to make conclusive findings of fact in the course of exercising the power to make the IHO and that the ultimate question (as to whether a building or place is of local heritage significance) falls to be addressed at a later stage.
In dismissing the appeal on 23 December 2022, AC Pullinger agreed with the Council’s submission that it is not the Court’s role to determine whether a building or place is of local heritage significance (and should be included in a planning instrument), but rather, whether the threshold test under s 25(2) has been met, that is, on further investigation, the building or place may be found to be of local heritage significance.
The importance of AC Pullinger’s decision is, even if there is not enough evidence to find that a building or place is of local heritage significance or to find that a building or place “meets the threshold for heritage listing”, that is not the question that the Court is required to ask itself under s 25(2) of the Heritage Act. The test under s 25(2) is not whether the building or place is of local heritage significance or whether the item meets the threshold for listing as Justice Pain found in Byron Ventilink Pty Ltd v Byron Shire Council [2005] NSWLEC 395; 142 LGERA 215 at [56]. Rather, and as AC Pullinger’s decision makes clear, the test under s 25(2) of the Heritage Act is whether on further investigation, the building or place may be found to be of local heritage significance.
At the time an IHO is made, the Council or the Court on appeal may not have evidence that a building or place is of local heritage significance; the purpose of an IHO is to provide interim protection and permit the Council time within which to conduct an investigation to determine whether there might be such evidence. The circumstances that enliven the power to make the IHO are simply that the decision maker holds the relevant opinion required by s 25(2) of the Heritage Act, and that on further investigation, the building or place is likely to be found to be of local heritage significance, subject to the conditions in the Ministerial Order. The formation of such opinion does not call for conclusive findings of fact.
