Planning, Development & Heritage: Millers Point Community Assoc. Incorporated v Property NSW and Others

On Tuesday 25 July 2017, our client, Millers Point Community Assoc. Incorporated, was thrilled by the success of its court challenge to the Heritage Minister’s decision not to list the Sirius Building on the State Heritage Register even though the Heritage Council had recommended that the building be listed.

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This is a seminal judgment on the Heritage Act, in force for 40 years this year, which resulted from the Green Bans of the 1970s and has preserved many of Sydney's historic buildings. This was the first time the undue financial hardship provisions of the Heritage Act had been considered in the Land and Environment Court.

The Court held that the Minister's decision not to list the building on the State Heritage Register was invalid and of no effect, and ordered the Minister to remake the decision in accordance with the law.  The NSW Government has been ordered to pay our client's legal costs.

Sirius, a public housing building owned by Property NSW, is recognised internationally as a good example of ‘brutalist’ architecture – a 20th Century architectural style that is considered bold, functional and egalitarian.

Whether or not it's your cup of tea, as well as being an iconic building, Sirius has a worthy heritage, as it was built in 1979 to rehouse public housing tenants under threat of eviction from proposed redevelopment of The Rocks area. It is a reminder of the historic Green Ban movement, led by Jack Mundey, which saved The Rocks (now a Heritage Conservation Area) from destruction, and ultimately led to the introduction of key environmental laws, including the Heritage Act.

Our client believes that the Sirius Building is an important part of the social history, heritage and community of Millers Point, and, given the case’s successful outcome, that it should be reinstated as social housing. In December 2015, the Heritage Council recommended that the Sirius Building be listed on the State Heritage Register because of its rarity and aesthetic value. Despite this, in July 2016 the Minister decided not to list Sirius on the State Heritage Register, placing greater importance on the loss of funds to the Government from the building's sale than on the building’s heritage significance.

On behalf of our client, Millers Point Community Assoc. Incorporated, we challenged the Minister’s decision and argued that the Heritage Act does not allow for the Minister to consider a potential loss of funds to the NSW government or foregone funds for social housing as justification for not listing a building on the State Heritage Register.

Following our legal challenge, the Minister has been ordered to decide whether or not to list Sirius on the State Heritage Register, in accordance with the law. A decision to list will not prevent the building’s sale, but does impose obligations on the owner, including the condition not to demolish the building.

EDO NSW recognises the public interest inherent in retaining items of heritage value. In this case, the Court found that financial hardship is not equivalent to financial loss, and that the term ‘undue’ requires the Minister for Heritage to carry out a balancing act between any ‘financial hardship’ suffered by the owner and the heritage significance of a building. This case was an important test of the Act’s ability to protect Heritage in NSW.

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