The Land and Environment Court of New South Wales has ruled the decision by the state’s then-heritage minister Mark Speakman not to place the Sirius public housing complex on the State Heritage Register was “invalid and of no legal effect.”
In a case that marked the first time the Heritage Act had been tested in a court since it was introduced in 1977, the court found the minister had made two errors of law in his decision.
The Sirius building, designed in 1979 by Tao (Theodore) Gofers and located in Sydney’s The Rocks, is slated for sale in order to fund new public housing in NSW.
Despite a unanimous recommendation from the Heritage Council of NSW that the Sirius building should be added to the State Heritage Register, in June 2016 the then-minster refused to list the building, claiming that it could reduce the sale value of the site by approximately $70 million, which is equivalent to 240 social housing units.
“I am not listing it because whatever its heritage value, even at its highest, that value is greatly outweighed by what would be a huge loss of extra funds from the sale of the site, funds the government intends to use to build social housing for families in great need,” Speakman said.
The government claimed the loss of funds would cause it “undue financial hardship” in its justification not to direct the building for heritage listing. However, the court has found the minister “misconstrued” the proper meaning of those words. “This error of law infected the minister’s decision, in exercising his function […] not to direct the listing of Sirius on the register.”
The court determined the government’s claim of financial loss did not constitute “financial hardship.”
Furthermore, the court determined that listing the building on the state heritage register would not necessarily cause “undue” financial hardship. The court referenced examples of the World Heritage-listed Sydney Opera House and the state heritage-listed Sydney Harbour Bridge.
“The financial impost associated with such iconic heritage items might be enormous, never cease, and cause the owner to suffer financial hardship, but however onerous, any financial hardship would, arguably, never be considered to be ‘undue’,” said the Land and Environment Court’s acting justice Simon Molesworth.
The court also found the minister failed to consider the building’s heritage significance in his decision.
The Millers Point Community Association, which brought the action against the government, alleged “the minister’s use of the ‘whatever’ demonstrates a lack of consciousness necessary to reach a full scope of the statutory task required of the minister as a decision-maker.”
The court agreed. “In my opinion, the minister did fail […] to consider and determine the heritage significance of Sirius,” Molesworth said.
“It is clear the minister side-stepped the required assessment.”
Shaun Carter, chairperson of the Save Our Sirius Foundation and a former NSW chapter president of the Australian Institute of Architects, told ArchitectureAU the court’s decision means the Heritage Act has been “strengthened.”
“If the government had won, it would have set a dangerous precedent because it would have meant that if the government decided the money was too great then it could override any bit of heritage legislation,” Carter said.
“Imagine if the government thought it could get 30 apartment towers on Bennelong Point and the Sydney Opera House really didn’t return the fat cash that 30 apartment buildings might. In theory, the government could possibly have done that.
“But a win for us means now the Heritage Act has not been gutted but it has been strengthened.
“It’s now got a very clear and defined pathway that a minister would have to go down, which is very rigorous if the minister wants to refuse a recommendation from the heritage council.”
The court has ordered the Minister for Heritage (now Gabrielle Upton) “to make a decision either to direct or not to direct the listing of the Sirius Apartment Building […] according to the law.”
The minister is yet to make a statement on the court’s decision. However, the minister for social housing Pru Goward said in a statement on her Facebook page, “The NSW Government’s decision to sell the Sirius building remains unchanged and is not affected by the judgment in the Land and Environment Court.”
Carter offered a suggestion for the sale of the Sirius building, which he said could result in a “win-win-win” situation for the government, a prospective buyer and the community.
“Lend Lease needs to find 64 affordable housing units at Barangaroo. It could acquire Sirius and the government could get some money for it. Lend Lease could use 64 of the 79 units for affordable housing and the other 15 remaining apartments could be used for aged care social housing which is what many of the units were designed for. They could do that tomorrow.
“The government say they want to address key worker, affordable housing yet we see very little evidence of it. You look at Sirius and it goes against everything they say. Fundamentally the people of NSW get to keep and important social and cultural artefact that’s so necessary to keep so we can remember our story of that time in Sydney’s life.”
The Heritage Council of NSW found the Sirius building to be “a rare and fine example of the late Brutalist architectural style especially in its application to social housing.”
It also noted the building’s association with the Green Bans Movement of the 1970s, which led to the establishment of the Heritage Council and the Heritage Act 1977.