Former MLC Building, North Sydney: demolition refused
On 3 May 2023 Land & Environment Court Senior Commissioner, S Dixon, handed down her decision to refuse the appeal by the building’s owner to demolish the former MLC building in North Sydney. The lengthy and comprehensive judgement can be accessed on the NSW Land & Environment Court’s website: https://www.caselaw.nsw.gov.au/decision/187d5f031a5f25edf7938262.
The wide-ranging judgement examined the financial aspects of the evidence as well as the heritage concerns submitted by a number of heritage and professional organizations the Australian Institute of Architects (NSW), the National Trust of Australia (NSW) and Docomomo Australia as well as North Sydney residents. In addition to Professor James Weirick, the National Trust of Australia and Docomomo Australia, the Chairman of the Heritage Council of NSW also addressed the Court at the site view regarding the Heritage Council’s view that, despite the administrative error that had resulted in the de-listing of the building from the SHR, the building was of State significance. The Senior Commissioner accepted that the building was of State significance.
Overwhelmingly, the Senior Commissioner found that the heritage significance of the building, as demonstrated in North Sydney Council’s evidence, was not overridden by the building owner’s evidence of a lack of a feasible use for the existing building other than demolition and redevelopment. The 1998 CMP for the building had set out policies that the Senior Commissioner stated had not formed the basis of the Applicant’s approach to the building. Given the heritage significance of the building, the Senior Commissioner found that the applicant had not demonstrated sufficient investigation of alternatives to the demolition of the building.
Of importance also, was the use of the Burra Charter as the basis for the policies of the CMP and the influence of the Burra Charter in the formulation of the North Sydney Development Control Plan. This emphasizes the importance of the Burra Charter as the basis for professional practice by heritage consultants.
The Senior Commissioner concluded her 50-page judgement:
“198 As the applicant succinctly puts it “the issue for the Court is not simply whether heritage significance will be impacted but whether the criterion for demolition is satisfied in the circumstances of this case”. For the reasons stated, I do not accept that the applicant has satisfactorily demonstrated why it is not reasonable to conserve the heritage Item taking into consideration the matters in Section 13.8 P2(a) and (b) that it has been satisfactorily demonstrated that alternative options to demolition have been considered, with reasons provided as to why the alternative are not acceptable. After a consideration of the matters under s 4.15 of the EPA Act including the public interest which embraces the principals of ecologically sustainable development and intergenerational equity: Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 at [188] and [189]; and mindful of the particular relationship between heritage conservation and intergenerational equity as identified in Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205 at [27], the evidence is weighs against the grant of consent to the application for demolition under cl 5.10(4) of the NSLEP. The appeal is dismissed.”
Report by
Scott Robertson
President, Docomomo Australia
