The building is the Sirius apartment building in The Rocks, overlooking Sydney Cove. Sirius is the physical evidence of the deal struck to end the Green Bans in The Rocks, allowing the local community to remain living in the area, and saving its historic streets and buildings from the wrecker’s ball. Or, to put in another way, Sirius is the archival record of that historically important breakthrough in the open-air archive of The Rocks.
The Court found the Minister failed to discharge his duty according to law, ruled the original decision was invalid and of no effect, ordered the current minister to make a decision again (this time to make it ‘according to law’), and ordered the State to pay all the costs.
Finally, it seems, there might be some rays of light piercing the gloom and lighting up our heritage places.
A former NSW Minister for Heritage, back in July 2016, refused to list the State-owned Sirius building on the State Heritage Register, after a recommendation from the Heritage Council to do so. The Minister can only make a listing on the recommendation of the Heritage Council. The RAHS issued a media release on 9 August 2016 supporting the Heritage Council’s professional expertise in making its recommendation on Sirius, a building of very important historical significance in the history of the NSW and Australian heritage movements, and the histories of the old local communities of The Rocks and Millers Point.
The Millers Point Community Association Inc challenged the Minister’s refusal in the Land & Environment Court, and the judgement was handed down on 25 July 2017.
The Minister’s decision
The Minister, in making the original refusal, said “I consider that … whatever the heritage significance of the Building, even at its highest … this is outweighed by the undue financial hardship its listing would cause to its owners, by diminishing what would otherwise be its sale value…”
The question for the Court was whether the Minister’s decision to refuse listing had been made in accordance with the Heritage Act. Had the Minister erred by misconstruing the meaning of ‘undue financial hardship’?, and by failing to determine the heritage significance of the building?
The Court concluded that the Minister had been in error in ‘misdirecting himself’ as to the meaning of ‘undue financial hardship’ [para 5], and had not determined the building’s heritage significance, and so failed to discharge his duty according to law [para 6]. It ruled the original decision was invalid and of no effect, and ordered the current minister to make a decision again, and this time to make it ‘according to law’ [para 7].
The records of that decision
The Court noted that the Minister had failed to make a decision with the statutory timeframe of 14 days [para 13], and that the written record of the decision appeared to have been constructed after the event, typed on ‘de-badged’ paper and unsigned [para 14]. Despite some pointed remarks by the Court on these matters (“a practice capable of lacking veracity”), they were not contested.
Several important principles were considered during the hearing, which will be of considerable interest to any historical or heritage society engaged in any battles over a heritage place, especially one listed, or recommended for listing, on the State Heritage Register.
The first is that issues of heritage significance are a precondition that must be considered by a Minister before other issues [paras 92-110, 148-150]. Whether the owner of a heritage item, listed or potential, might suffer some financial hardship because of a listing should only be considered by a Minister once the heritage values of a heritage item have been determined. They are not factors to help decide whether a place has heritage significance.
Secondly, financial hardship is not established by an owner simply claiming there will be a reduction in the market value of a heritage item [paras 114-137]. There is no basis to equate financial hardship with making a monetary loss on a business transaction. In this case, the owner of the Sirius is the State of NSW. Vesting the building in any department or agency name is simply an administrative arrangement, as the State remains the actual owner. The Court was not persuaded of any convincing case that heritage listing the Sirius would impose a financial hardship on the whole State of NSW, however it may choose to divide-up and arrange its assets and finances, and proceeds from property sales, between its various agencies.
Thirdly, a Minister cannot assume that a heritage listing will mean a financial devaluation of a property [paras 132-136]. The Court found the Heritage Council provides many flexible arrangements for managing heritage items, such as site-specific exemptions from approvals, adaptive re-use strategies, financial assistance and endorsed conservation management plans, among other things. In total, these can mitigate against financial losses, and if well planned and managed, can lead to an increase in property values.
Finally, the Court found that a heritage property has more than just financial value [paras 138-143]. It also has cultural value, the loss of which may be so significant and irreplaceable that any financial hardship must be tolerated. A heritage property owned by the State of NSW has to be managed to conserve all its values, not just the State’s financial policies. The Court stated heritage listing “… may be accepted by a generous owners as a small price to pay to conserve a cherished heritage building” [para 130], and cited the examples of the Sydney Opera House and the Sydney Harbour Bridge, which because of their outstanding heritage values could never be contemplated as causing undue financial hardship to the State.
This last point is very important in clarifying the high status a heritage listing should be accorded, whatever a government’s other policies might be at any particular time. However, it should be noted that none of this prevents the State from selling the Sirius to a private owner, or continuing to evict its residents, or leaving the building to sit deteriorating and hoarded-up.
On one hand, the current Minister (the Minister who made the refusal having since moved on to another portfolio) will have to make a new decision that considers the heritage significance of the Sirius, a matter on which the Heritage Council has already provided professional and expert advice that the building is of State heritage significance and therefore worthy of listing. On the other, a listing would still not prevent the sale of the building, or halt the removal of its remaining residents. It would make the building subject to the Heritage Council’s minimum standards of maintenance to prevent its deterioration, and it would prevent the Heritage Council giving approval for its demolition. But that, in turn, could be circumvented if the State declares a project involving demolition of the Sirius a ‘State significant development’.
Despite this win by the Millers Point Community Association, and all the friends of Sirius who have kept this issue alive and in the media, the possibility that the Court ruling may not be the last chapter in the story should not be dismissed.
But for now, the ball is back in the Minister’s court. How a new decision is made that, in the words of the Land & Environment Court, is “a lawful decision”, will be watched with intense interest across NSW and Australia.
Meanwhile, if you or your Society is grappling with the destruction of heritage listed places that are owned by the State, especially heritage places where historical significance is a key factor, being able to apply some of these principles might help you argue for better outcomes.
It might turn out, after all, that Sirius indeed remains the brightest star in the night sky.
Click here to read the Court judgement in full.
Click here to read the RAHS’s media release of 9 August 2016.
Click here to view the RAHS interview with Sirius architect Tao Gofers.
Click here to download this article in PDF format.