Often throughout Sydney and broader New South Wales, the ‘heritage status’ of a building or property can impact development projects and proposals. Under clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, a ‘draft heritage item’ is defined as a ‘building, work archaeological site, tree, place or Aboriginal object identified as a heritage item in a local environmental plan that has been subject to community consultation.’ Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100 saw the Court address the impact of a ‘draft heritage item’ when beginning demolition on a property.
Facts of the case
- Randwick City Council (Council) commenced proceedings against Belle Living Pty Ltd (Belle Living) seeking to invalidate the complying development certificate in force for a demolition work site in Coogee.
- Following community consultation and consideration of the Randwick Local Environmental Plan 2012, the property was identified as being eligible for heritage status in 2023 and required further research to confirm the status. The property was then issued an interim heritage order by the Council.
- Belle Living appealed the interim heritage order (Belle Living Pty Ltd v Randwick City Council [2023] NSWLEC 1282) and the Court ultimately revoked the order.
- Belle Living was issued a complying development certificate and commenced demolition under the Environmental Planning and Assessment Act 1979 (NSW). However, the Council argued that the complying development certificate issued was invalid pursuant to clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
The main issue apparent throughout the case is whether s4.31 of the Environmental Planning and Assessment Act 1979 (NSW) ultimately invalidates the complying development certificate in relation to a ‘draft heritage status’. This case exemplifies the complicated nature of heritage status properties and how specific policies, and legislation can affect development proposals. The Court found that the certificate was invalid, and that Belle Living had carried out unauthorised partial demolition. This case acts as a reminder to developers to ensure they are aware of property heritage status prior to commencing work.