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Heritage Approval & When It Is Required

Most readers will know that a number of older, or historically significant buildings, are ‘listed’ by the State Heritage Council; and the consent of the Council is required for any alteration to them. The NSW Court of Appeal recently dealt with a dispute involving the circumstances in which Heritage Council consent was required.

Briefly, a company, Stanford Property Services Pty Ltd (Stanford) owned property on Macquarie Street in Sydney. There were two structures on it (that were connected). One was known as the “Old Health Department Building” and it was listed on the State Heritage Register. The second was a more modern building, with no heritage listing. Stanford sought development consent to demolish and rebuild the more modern building. Under the proposal, the heritage building was to be preserved.

An adjoining property owner, Mulpha Australia Limited (Mulpha) objected to the proposal. It said the development could not go ahead because Heritage Council consent was necessary, but had not been given. The essence of its argument was that the heritage ‘listing’ applied to the whole land, not just the specific heritage building standing on it. The Heritage Council took the view that whilst its consent may have been required for the heritage building, it had no role in relation to the more modern building.

Mulpha took proceedings in the Land & Environment Court seeking orders prohibiting the development. Mulpha contended that because of the particular language of the Heritage Act 1977 (NSW), Heritage Council consent was required for any development on any part of land where there was a structure with a heritage listing. In other words, because both structures were on a single parcel of land, Mulpha said that even demolition of the modern building required Heritage Council approval, notwithstanding it was not a ‘listed’ building.

The court initially found in Mulpha’s favour but on appeal the Court of Appeal, by majority, said that on a proper interpretation of the Heritage Act, Heritage Council consent was only required for a development of that part of land on which a heritage listed building was located. Consent was not required for a development on any other part of a particular parcel of land.

Although the decision is clearly of only direct relevance to circumstances in which a development may be proposed in close proximity to a heritage listed building; it does appear to make clear that where there is more than one structure on a single parcel of land, Heritage Council consent is only relevant to the development of a structure that is heritage listing, and not otherwise: Stanford Property Services Pty Ltd v Mulpha Australia Limited [2009] NSWCA 141.

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