Reported Decision : (1999) 106 LGERA 1 Land and Environment Court of New South Wales CITATION: Rosecorp Pty Limited v Leichhardt Municipal Council [1999] NSWLEC 95 PARTIES APPLICANT Rosecorp Pty Limited RESPONDENT Leichhardt Municipal Council NUMBER: 10641 of 1998 CORAM: Cowdroy A J KEY ISSUES: :- appeal instituted against deemed refusal of council pursuant to s97 of the EPA Act - interim conservation order subsequently gazetted pursuant to s26 of the Heritage Act 1977 - court is not a "consent authority" as defined in s56 of the Heritage Act 1977 - no "prescribed application" as required by s67, s68, and s76 of the Heritage Act - court retaining power to determine appeal. LEGISLATION CITED: appeal instituted against deemed refusal of council pursuant to s97 of the EPA Act - interim conservation order subsequently gazetted pursuant to s26 of the Heritage Act 1977 - court is not a "consent authority" as defined in s56 of the Heritage Act 1977 - no "prescribed application" as required by s67, s68, and s76 of the Heritage Act - court retaining power to determine appeal. DATES OF HEARING: 04/08/1999 DATE OF JUDGMENT DELIVERY: 04/22/1999 APPLICANT Mr I J Hemmings Solicitors Norton Smith & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P J Schofield Solicitors Pike Pike and Fenwick JUDGMENT: Background 1. On the 30 June 1998, the applicant lodged Development Application No. 330/98 with the Leichhardt Municipal Council ("the council") in respect of a stone boatshed and land known as 2-8 Weston St, East Balmain ("the land"). On 22 September 1998 following a deemed refusal, a class one application was lodged with the court pursuant to s97 of the Environmental Planning and Assessment Act ("the EPA Act") appealing against such refusal. Between the 2 February 1999 and 10 February 1999 the applicant amended its plans in various ways. On 17 February 1999 the court vacated a hearing which was due to commence on 22 February 1999. The same day, the council exhibited a local environmental plan to rezone the land the subject of the development application for public open space. On the 26 February 1999 an Interim Conservation Order No. 947 ("the ICO") pursuant to s76 of the Heritage Act 1977 was gazetted in respect of the subject land. 2. The matter comes before this court to answer the following questions of law:- 1. Whether having regard to interim conservation order No.947 published in the Government Gazette of 26 February 1999 the Court has jurisdiction to hear the application because of section 76 of the Heritage Act, 1977. 2. If the Court answers 1 in the affirmative: a) whether the Court is a consent authority for the purposes of the Heritage Act; b) whether having regard to s67 of the Heritage Act it would be within power for the Court to approve the application before the Heritage Council's determination under that Act has been notified to the consent authority. The Heritage Act 3. The Heritage Act 1977 has recently been amended by the provisions of the Heritage Amendment Act 1988 (Act no. 138 of 1998). The amended Act is hereafter referred to as "the Heritage Act". Section 76 thereof provides:- 76. If, under the Environmental Planning and Assessment Act 1979, any environmental planning instrument in force under that Act, the Local Government Act 1993, any instrument made under that Act, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, an applicant has a right of appeal arising from the making of a prescribed application, that right is to be exercised by making that appeal to the Minister, despite those Acts or any such instrument. The term "prescribed application" is defined in s56 of the Heritage Act which relevantly provides:- 56 In this Part: "prescribed application" means an application for the approval of a consent authority under any of the following: (a) the Environmental Planning and Assessment Act 1979, not being an application relating to integrated development... in respect of the doing or carrying out of an act, matter or thing the doing or carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of this Part. Section 57(1) of the Heritage Act relevantly provides:- 57 (1) A person shall not, in respect of a building, work, relic or place to which an interim conservation order or a permanent conservation order applies or any land (other than such a place) which is subject to an interim conservation order or a permanent conservation order: (a) demolish that building or work... (d) carry out any development in relation to the land on which that building, work or relic is situated, the land which comprises that place, or that land; (e) alter that building, work or relic (f) alter the building, work, relic or moveable object, ... except in pursuance of an approval granted by the Heritage Council under Subdivision 1 of Division 3. Section 67 of the Heritage Act provides:- 67 An approval given by a consent authority to a prescribed application before the Heritage Council's determination of the application has been notified to the consent authority is void. Section 68 of the Heritage Act provides:- 68 An approval given by a consent authority to a prescribed application is, to the extent of any inconsistency with the Heritage Council's determination of the application, void. Approval of the Heritage Council is required for the proposed development in consequence of the gazettal of the ICO on 26 February 1999 by virtue of s57(1) of the Heritage Act. The question is whether this Court, in view of s67 of the Heritage Act is empowered to continue to hear the appeal, or whether the Minister must hear it pursuant to s76 of the Heritage Act. Council's contentions 4. The council submits that the appeal before the court is a "prescribed application" as defined in s56 of the Heritage Act. It argues the court is the consent authority for the purposes of the Heritage Act and any consent granted by the Court before the Heritage Council's determination has been notified would be void by virtue of s67 of the Heritage Act. 5. Council also submits that s39(6) of the Land and Environment Court Act 1979 ("LEC Act") has no application. This section relevantly provides:- Notwithstanding any other provision of this section, if an appeal relates to an application made to ... a consent authority within the meaning of the Environmental Planning and Assessment Act 1979, and that ... consent authority may not approve of, consent to, or deal with, or grant a permission in respect of , the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted; Council argues that s76 of the Heritage Act does not make any provision for consultation with or concurrence of any person, and that it's provisions must now govern the appeal before this Court. Applicant's contentions 6. The applicant does not suggest that the proposed development is exempt from the provisions of the Heritage Act. It acknowledges that approval is required from the Heritage Council to the development pursuant to Subdivision 1 of Division 3 of Part 4 of such Act as provided by s57(1) thereof. The applicant says however that there is no ouster of the court's jurisdiction by virtue of s67 of the Act as is suggested by the council. It submits that the appeal to this court pursuant to the provisions of s97 of the EPA Act is not a "prescribed application" as defined in s56 of the Heritage Act because this court is not a consent authority within the definition contained in s4 of the EPA Act. 7. In addition to the above, the applicant submits that since the appeal was instituted before the gazettal of the ICO on 26 February 1999, the applicant never made a prescribed application which is required by the provisions of s76, and therefore it is unaffected by it. 8. Thirdly the applicant submits that s76 has no application because the right of appeal in that section is dependent upon a prescribed application. For the reasons advanced above, there is no "prescribed application". Alternatively, the applicant relies upon s39(6) of the LEC Act to establish this Court's continued jurisdiction to hear the appeal. Is this Court a "consent authority" as defined in the EPA Act 9. The critical matter for determination in respect of the applicant's first submission is the definition of "consent authority". Section 56 of the Heritage Act, which defines "prescribed application", refers to the definition of "consent authority" as contained in the EPA Act. Section 4 of such Act defines the term as follows:- consent authority, in relation to a development application or an application for a complying development certificate, means: (a) the council having the function to determine the application, or (b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application - that Minister or public authority, as the case may be. The term "public authority" is also defined in s4. It does not include this Court. 10. Upon the exercise of the right of appeal provided by s97 of the EPA Act, the court adjudicates upon the determination by the consent authority whose decision is challenged. This process however does not constitute the court as a "consent authority" for the purposes of the EPA Act. 11. Such conclusion is confirmed by s39(5) of the LEC Act which provides:- The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. This section recognises that this Court, in delivering its judgment in an appeal under s97 of the EPA Act from the decision of a consent authority is fulfilling an appellate function. However this function does not render this Court a "consent authority" as defined in the EPA Act. 12. The operation of s76 of the Heritage Act is predicated upon an applicant having a right of appeal arising from the making of a "prescribed application". The term "prescribed application" as defined in s56 of the Heritage Act relevantly confines the meaning to an application made to a consent authority under the EPA Act. Since the court is not a "consent authority" as defined in the EPA Act, the requirements of the definition are not satisfied. Accordingly s76 of the Heritage Act has no application. 13. In view of the above findings, the jurisdiction of the court is not affected by the provisions of s67, s68 nor s76 of the Heritage Act since each section requires a "prescribed application" to exist within the meaning of s56 of such Act to enable their operation. Answers to questions 14. It is unnecessary to consider the other grounds relied upon in view of the above finding. The questions asked of this Court are answered as follows:- 1. Yes 2. a) No b) Yes DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.