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Clarifying the Meaning of Land where a Heritage Item is Situated

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In the recent case of Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) NSWCA 141 the Court of Appeal disagreed with a decision of the NSW Land & Environment Court (LEC) and, in doing so, clarified the meaning of “land” as it applies to s57(1)(e) Heritage Act 1977 (NSW).

Stamford Property owned a parcel of land at the corner of Macquarie and Albert Streets in central Sydney. Part of the parcel of land was occupied by the "Old Health Department Building", which is listed on the State Heritage Register. On the same lot, there was a more modern building to which it was internally connected. Stamford applied for development consent to demolish the newer building and erect a larger apartment building in its place. Mulpha Australia Ltd owned land immediately south of the site and objected to the application because of its "heritage impact" and that the Heritage Council had misconstrued s57(1)(e). This subsection prohibits the carrying out of development "in relation to the land" on which a heritage-listed building is situated without approval by the Heritage Council. The Council did not consider it needed to provide approval for the apartment block.

The LEC found in Mulpha’s favour because of the nexus (attachment) between the listed building and its neighbouring building. However, the Court of Appeal held that the word "land" means the land on which the heritage building is standing, not the whole lot where it is located, nor the land with a nexus to the heritage item as held by the LEC. This judgment clarifies the meaning of land in s57(1)(e) though it recognised land could have different meanings depending on the context.

 

Contact our Land and Environment Court Lawyers, Sydney, NSW

Szabo & Associates Solicitors are experienced practitioners in Land & Environment Court matters. If you require advice or assistance concerning any such matters, please call us on (02) 9281 5088 or fill in our online contact form.

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