![]() ![]() In determining whether the Minister had misconstrued the words ‘ would cause undue financial hardship to the owner‘ the Court decided there were two ‘yardsticks’ that required a comparative exercise : However, as the Minister had chosen to make a decision pursuant to this section, and had relied upon the basis of ‘undue financial hardship’ as it appears in s32(1)(d) in making the determination, he elevated his obligation and did fall into error. The process of the Minister’s decision enlivened the Court’s power to consider if s32 had been misconstrued. The Court found that the Minister was not required to consider s32(1) of the Act. his interpretation of undue financial hardship to mean “ mere reduction in value or potential profit from the sale of the Sirius Building and possible loss of monies for social housing to the New South Wales Government” was incorrect. ![]() he fell under the misapprehension that it was not necessary to consider the heritage significance of Sirius, and.he omitted to consider the particular financial circumstances of the owner of Sirius in considering ‘undue financial hardship’,.The Applicant submitted that the Minister was required to consider the factors in s32(1), and had misconstrued the section in three ways : (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated.’ (c) whether the listing would render the item incapable of reasonable or economic use, (b) whether the long-term conservation of the item is necessary, (a) the recommendation of the Heritage Council that the item should be listed ‘(1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following: Millers Point Community Association Incorporated’s (‘ Applicant‘) primary challenge to the Minister’s decision was that he had misconstrued section 32(1)(d) of the Act, thus he ‘ constructively failed to exercise jurisdiction‘. ‘ whatever the heritage significance of the Building, even at its highest (including even if it reached a threshold for State heritage significance), this is outweighed by the undue financial hardship its listing would cause to its owners, by diminishing what would otherwise be its sale value (possibly by in the order of $70 million), which would potentially represent foregone funds for additional social housing.‘ One reason for the Minister’s decision was that: On 30 July 2016 the Minister determined not to direct that Sirius be listed on the Register. On 19 March 2014 the NSW Government announced its intention to sell Sirius and reinvest the sale proceeds into social housing. Until recently Sirius has been used for social housing. Sirius was built in the 1980s and is a recognised example of Brutalist architecture. Property NSW own the land and building, with the New South Wales Land and Housing Corporation the lessee and manager. The Heritage Council was satisfied that the building’s aesthetic value and rarity warranted its listing. On 14 March 2016 the Heritage Council of New South Wales (‘ Heritage Council‘) made a recommendation to the Minister that Sirius be listed on the Register. The Court found that the Minister made an error of law in deciding that listing Sirius on the Register ‘ would cause undue financial hardship to the owner‘, and that he had not discharged the duty required of him by the Act. The Court considered the decision of the Minister for Heritage (‘ Minister‘) to not direct that the Sirius Apartment Building (‘ Sirius‘) be listed on the State Heritage Register (‘ Register‘). Posted on Septemby Katie Mortimer and Megan Hawley ‘Undue financial hardship’ & heritage value – the Court gets SiriusĪ significant decision for the interpretation of the Heritage Act 1977 (‘ Act‘) was recently made by the Land and Environment Court (‘ Court‘) in Millers Point Community Assoc. Home > infocus > ‘Undue financial hardship’ & heritage value – the Court gets Sirius
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