Land and Environment Court of New South Wales CITATION : Gameplan Sports & Leisure Pty Limited v South Sydney City Council & Ors [2000] NSWLEC 112 APPLICANT Gameplan Sports & Leisure Pty Limited PARTIES : RESPONDENT South Sydney City Council & Ors FILE NUMBER(S) : 10021 of 1996 CORAM: Cowdroy J KEY ISSUES: Question of Law :- Application of the Environmental Planning and Assessment Savings and Transitional Regulation 1998 - whether development application had been determined by consent authority in accordance with provisions of Environmental Planning and Assessment Savings and Transitional Regulations 1998 -whether development application constitutes application for integrated development - whether development consent required from Heritage Council of New South Wales. Environmental Planning and Assessment Act 1979 (unamended) s 64(2), s 93(4), s 97(5)(b) Environmental Planning and Assessment Act 1979 s 91 LEGISLATION CITED: Heritage Act 1977 s 58 Land and Environment Court Act 1979 s 39(6) Environmental Planning and Assessment Savings and Transitional Regulations 1998 cl 11, s 58 CASES CITED: Overton Investments Pty Limited v Sutherland Shire Council NSWLEC no: 130352/90, unreported; Rosecorp Pty Limited v Leichhardt Municipal Council (2000) 106 LGERA 1 DATES OF HEARING: 24/5/00 DATE OF JUDGMENT: 06/14/2000 APPLICANT Mr A Galasso (Barrister) SOLICITORS Mallesons Stephens Jacques RESPONDENT Mr P Schofield SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: INTERVENER Dr D Birch (Barrister) SOLICITORS Crown Solicitors APPLICANT OF NOTICE OF MOTION Mr J MacDonnell SOLICITORS Crown Solicitors JUDGMENT: IN THE LAND AND MATTER No. 10021 of 1996 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 14/6/00 Gameplan Sports and Leisure Pty Limited Applicant v South Sydney City Council Respondent & Attorney General of New South Wales Intervener & The Heritage Council of New South Wales Applicant of Notice of Motion JUDGMENT History of proceedings 1. On 26 June 1995 Gameplan Sports and Leisure Pty Limited ("Gameplan') lodged a development application number 0516/95 ("the application") with the South Sydney City Council ("the council") for the construction of a new tennis centre, the construction of a restaurant, the upgrading of two existing tennis courts, the demolition of an existing toilet block and parking for 80 cars ("the development"). The site of the development is located at the intersection of Anzac Parade and Lang Road, Moore Park, New South Wales ("the site"). On 8 September 1995 Gameplan was notified that the application had been refused by resolution of the council on 31 August 1995 upon the ground that the use of the site for the purpose of a restaurant was a prohibited use pursuant to the City of Sydney Planning Ordinance ("PSO") and that Gameplan failed to demonstrate any existing use rights. On 15 January 1996 Gameplan instituted a class one appeal to this Court pursuant to s 97 ("the class one appeal") of the Environmental Planning and Assessment Act 1979 (hereafter referred to as "the unamended EP&A Act"). 2. On 15 January 1996, Gameplan also initiated class four proceedings in this Court seeking a declaration that the development was a permissible use of the site. By judgment dated 4 October 1996 in proceedings no 40007/96 the Chief Judge of the Land and Environment Court upheld the council's determination. 3. On 5 August 1998 Gameplan instituted an appeal from the decision of the Chief Judge to the New South Wales Court of Appeal. By judgment delivered on 2 July 1999 in proceedings number CA406299 the New South Wales Court of Appeal upheld the appeal, by concluding at para [21] of the judgment that a restaurant as a public refreshment room or rooms was a permissible use of the site pursuant to the PSO. 4. As a consequence of the judgment of the New South Wales Court of Appeal the class one appeal which has been stood over pending the outcome of the class four proceedings was revived. The class one appeal was listed for further directions on 15 of July 1999. Such proceedings were stood over to 18 October 1999 to enable the council to provide Gameplan and the Court with draft conditions of consent. 5. On 24 March 2000 certain lands known as the ' Centennial Parklands ' which include the site were listed on the State Heritage Register pursuant to Part 3A of the Heritage Act 1977 ("the Heritage Act"). Current proceedings 6. The Attorney General has intervened pursuant to the provisions of s 64(2) of the Land and Environment Court Act 1979 ("the Court Act") and has raised two questions of law for the determination of the Court as follows:- 1. Whether, on the proper interpretation of the Environmental Planning & Assessment (Savings and Transitional) Regulation 1998, the Development Application which is the subject of these proceedings is subject to the "integrated development" provisions of the Environmental Planning & Assessment Act 1979 ("the EPAA"), or whether the matter should be dealt with in accordance with the EPAA as it stood immediately prior to the commencement of the amendments to that Act in 1998. 2. Whether, if the Development Application is not "integrated development", the applicant must make application to the Heritage Council pursuant to Division 3 of Part 4 of the Heritage Act 1977 in respect of the development for approval to proceed with the development proposal contained in DA U95-00516. 7. In addition to the questions of law, the Heritage Council of New South Wales ("the Heritage Council") by notices of motion filed 1 May 2000 and 26 May 2000 has sought leave to be heard. Statutory context of the first question of law 8. On 1 July 1998, the Environmental Planning and Assessment Amendment Act 1997 (hereafter referred to as "the EPAA Act") commenced its operation. By virtue of such Act, the provisions of Pt 4 of the unamended EP&A Act were removed and substituted by new provisions. Pt 4 of the amended Environmental Planning & Assessment Act ("the amended EP&A Act") contains a new concept as set out in Div 5 thereof, namely that of 'integrated development'. The amended EP&A Act defines integrated development as follows:- 91 (1) Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals: Section 91 of such Act then lists the statutes pursuant to which development consent may be required. In these proceedings the only statute of relevance listed in s 91 of the amended EP&A Act is The Heritage Act. Section 58 of the Heritage Act requires development approval from the Heritage Council in respect of the ' doing or carrying out of any act, matter or thing upon land classified on the State Heritage Register' . 9. Schedule 1, cl 56 of the EPAA Act makes provision for regulations concerning transitional and saving matters arising from the amendments implemented by the amended EP&A Act. Pursuant thereto the Environmental Planning and Assessment Savings and Transitional Regulation 1998 ("the Transitional Regulations") were implemented. Clause 11 and cl 15(1) of the Transitional Regulations are relevant to these proceedings. 10. Clause 11 provides:- 11 The unamended EP&A Act 1979 continues to apply to and in respect of any development application made, but not determined by the consent authority, before the appointed day as if the EP&A Amendment Acts had not been enacted. Clause 15 provides:- 15 (1) Sections 97, 98 and 99 of the unamended EP&A Act 1979 continue to apply to a determination of a development application under Part 4 of that Act (including a determination arising under this Division) as if the EP&A Amendment Acts had not been enacted. The first question of law a) Submissions of the Attorney-General 11. The council supports the submission of the Attorney-General that Gameplan's right of appeal pursuant to s 97 of the unamended EP&A Act continues unaffected by the amendments implemented by the amended EPAA Act. 12. The Attorney-General's submission is founded in part upon the provisions of cl 15(1) of the Transitional Regulations which the Attorney-General argues operates to preserve the applicants right of appeal pursuant to s 97 of the unamended EP&A Act. Clause 11 of the Transitional Regulations is also relied upon by the Attorney General. The Attorney-General maintains that the appeal in relation to Gameplan's refused development application instituted in the Court prior to the implementation of the amended EP&A Act has not been ' determined by the consent authority ' since the appeal is still to be heard. Accordingly cl 11 of the Transitional regulations applies to the application. Further since the class one appeal has not been heard, the Attorney-General submits that there has been no ' determination ' as referred to in cl 15(1) of the Transitional Regulations. It follows that by virtue of cl 15 of the Transitional Regulations, s 97, s 98 and s 99 of the unamended EP&A Act continue to apply, thereby requiring Gameplan's class one appeal to be determined by the Court in accordance with those sections. 13. The Attorney-General contends that incongruous circumstances would result in the event that cl 15 did not apply to the class one appeal. Specifically the Attorney-General points to the fact that if the regime of the amended EP&A Act applies to Gameplan's appeal, the Heritage Council as the relevant approval body pursuant to s 91 of the amended EP&A Act and s 58 of the Heritage Act could be made a party to the class one appeal pursuant to s 97(5)(b) of the amended EP&A Act despite the fact that there has been no decision of the Heritage Council to which such an appeal could relate. The Attorney-General submits that since the application was refused by council prior to the introduction of the amended EP&A Act, the council has considered the application pursuant to the development consent provisions of the unamended EP&A Act. The Attorney-General submits that to allow the class one appeal to proceed pursuant to the provisions of the amended EP&A Act would be contrary to cl 15(1) of the Transitional Regulations since Gameplan's right's pursuant to the unamended EP&A Act would not be preserved. 14. Accordingly the Attorney-General submits that Gameplan should be required to seek the approval of the Heritage Council pursuant to s 58(1) of the Heritage Act consistent with the Transitional Regulations and that the application for development consent should not be determined as one relating to integrated development. b) Submissions of Gameplan 15. Gameplan submits that the provisions of the amended EP&A Act govern the determination of the appeal. Gameplan maintains that cl 11 of the Transitional Regulations applies to ' applications made but not determined before the appointed day '. It submits that the application was determined by council on 31 August 1995, that is prior to the appointed day for the commencement of the operation of the amended EP&A Act which came into operation on 1 July 1998. Accordingly the provisions of the amended EP&A Act apply to the determination of the class one appeal. 16. Gameplan contends that the application constitutes an application for integrated development pursuant to Pt 4 Div 5 of the amended EP&A Act since the development requires consent pursuant to cl 23 and cl 31 of the PSO and also requires consent from the Heritage Council pursuant to s 57 of the Heritage Act. Finding as to the first question of law 17. Both cl 11 and cl 15(1) of the Transition Regulations provide that the unamended EP&A Act " continues to apply " in relation to certain development applications. Such wording suggests that the function of cl 11 and cl 15(1) of the Transitional Regulations is to preserve rights which existed pursuant to the unamended EP&A Act. The operation of both cl 11 and cl 15 of the Transitional Regulations are predicated upon the absence of a determination by the consent authority of a development application. 18. The class one appeal was initiated by the applicant on 15 January 1996 pursuant to s 97 of the unamended EP&A Act. Section 39(1) of the Court Act defines an appeal as inter alia ' any matter which may be disposed of by the Court in proceeding in class 1,2 or 3 of its jurisdiction '. Pursuant to s 39(5) of the Court Act the determination of an appeal by the Court is deemed to be ' the final decision of the person or body whose decision is the subject of appeal and shall be given effect to accordingly'. 19. The provisions of s 93(4) of the unamended EP&A Act (now contained in s 83(4) of the amended EP&A Act) provide: (4) Where a determination is made by refusing consent or where an application is deemed by section 96 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision shall be deemed to be a consent granted under this Division and that consent shall be effective and operate from the date of that decision. 20. The application of the provisions of s 39(5) of the Court Act and the provisions of s 93(4) of the unamended EP&A Act to a class one appeal pursuant to s 97 of the unamended EP&A Act was judicially considered by Talbot J in Overton Investments Pty Limited v Sutherland Shire Council NSWLEC no: 130352/90, unreported. His Honour observed:- The determination by the Court on 1 November, 1990 was made pursuant to Section 97 of the EPA Act and in so doing the Court was exercising its power pursuant to that Act and the Land and Environment Court Act. That determination is deemed to be the final decision of the council and shall be given effect to as if it was a decision of the council (see Section 93(4) EPA and Section 39(5) Land and Environment Court Act). 21. Although council made a ' determination ' in respect of the application on 31 August 1995, that decision is not, in view of Gameplan's appeal, a determination for the purpose of cl 11 and cl 15. Upon the interpretation reached above, supported by the decision of Talbot J, there has been no 'final' determination by the council, as required in cl 11 and cl 15 of the Transitional Regulations. Pursuant to s 93(4) of the unamended EP&A Act and s 39(5) of the Court Act the decision of the Court in relation to an appeal pursuant to s 97 of the unamended EP&A is deemed to be the final determination of a development application. Since the class one appeal was filed on the 15 June 1996 it follows that both cl 11 and cl 15(1) of the Transitional Regulations apply to the application. Such clauses are to be interpreted as applicable to a determination which finally disposes of the application for development consent. 22. It follows that the integrated development provisions contained in Pt 4 Div 5 of the amended EP&A Act have no operation in the determination of the application. Finding as to the second question of law 23. Gameplan acknowledges that an application for development consent for the site must be made pursuant to s 58(1) of the Heritage Act since the site is now an item listed on the State Heritage Register pursuant s 32 of that Act. Section 58 of the Heritage Act provides:- 58 Application of Subdivision (1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57(1). (2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57(1) is required to be made. 24. The Attorney-General submits that the express words of the provisions of s 57(1) and Part 4 Div 3 of the Heritage Act provide that Gameplan cannot proceed with the development of the site until the Heritage Council has granted development consent. Section 57 of the Heritage Act relevantly provides:- 57 Effect of interim heritage orders and listing on State Heritage Register (1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish that building or work, (b) - (d) not relevant e) 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; f) alter that building, work or relic g) - (f) not relevant 25. The express words of s 57(1) and of s 58(1) of the Heritage Act support the construction relied upon by the Attorney General. Section 57(1) of the Heritage Act which provides inter alia ' a person must not ' develop a state heritage listed item without consent operates to prohibit development until an approval is granted by the Heritage Council pursuant to s 63 of the Heritage Act. 26. Gameplan has submitted that if the amended EP&A Act and particularly the provisions relating to integrated development do not apply, the Court can proceed to determine the class one appeal. In support of such submission Gameplan relies upon Rosecorp Pty Limited v Leichhardt Municipal Council (2000) 106 LGERA 1 and s 39(6) of the Court Act. In Rosecorp Pty Limited v Leichhardt Municipal Council the Court held that the Land and Environment Court was not a consent authority as defined in s 4 of the unamended EP&A Act. The Court held at 7:- Upon the exercise of the right of appeal provided by s 97 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. 27. Gameplan further submits that in the circumstance that the Court finds the application is not an application for integrated development, s 67 and s 76 of the Heritage Act does not apply to the application. The submission is predicated upon the assertion that the application would not be a 'prescribed application' as defined in s 56 of the Heritage Act. 28. Section 56 defines prescribed application as:- "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, (b) - (e) not relevant in respect of the doing or carrying out of an act, matter or thing the doing carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of this Part. 29. 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. 30. Section 76 of the Heritage Act relevantly provides:- 76 . If, under the Environmental Planning and Assessment Act 1979, any environmental planning instrument in force under that Act … 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. 31. The appeal before the Court is not affected by the operation of the provisions of the Heritage Act. Such Act requires an applicant for development of lands the subject of a State Heritage Registrar listing to lodge on application for development to the Heritage Council. The statutory procedures prescribed by the Heritage Act creates a legal regime which operates independently of the appeal instituted in this Court pursuant to s 97(1) of the unamended EP&A Act. The rights of appeal of Gameplan in relation to the application made pursuant to the provisions of s 58 of the Heritage Act are to be determined according to the provisions of that Act. 32. Gameplan also relies upon s 39(6) of the Court Act. It provides:- (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979, and that council or 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; and (b) in a case where the concurrence or approval has been granted - the Court may revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. As the appeal to this Court is determined independently of the Heritage Act, s 39(6) of the Court Act has no relationship to the question asked of the Court and is accordingly not a matter for determination. It follows that the provisions of s 67 and s 76 of the Heritage Act have no bearing upon Question 2 as posed to the Court and it is unnecessary to determine whether any application by Gameplan pursuant to s 76 is a 'prescribed application'. 33. In answer to Question 2 the Court determines that as the site is an item listed on the State Heritage Register pursuant to s 32 of the Heritage Act, Gameplan pursuant to s 57 and Pt 4 Division 3, Subdivision 1 of the Heritage Act is obliged to submit to the Heritage Council an application for approval in relation to any work to be carried out on the site before any development thereof takes place. Notice of motion of the Heritage Council 34. The determination of the notice of motions filed by the Heritage Council on 1 May 2000 and 26 May 2000 is only necessary if the Court finds that Gameplan's development application is to be determined as an integrated development pursuant to Pt 4 Div 5 of the amended EP&A Act. 35. Since the Court has found that Gameplan's application is not an application for integrated development the Heritage Council does not press its notice of motion to be heard pursuant to 97(5)(b) of the unamended EP&A Act. The Court dismisses the notices of motion filed on the 1 May 2000 and on 26 May 2000 by the Heritage Council. The Orders 36. Whilst Gameplan seeks an order for the payment of its costs, the Court considers that each party should bear its own costs. 37. The Court answers each of the questions as follows:- 1. The Development Application which is the subject of these proceedings is to be determined in accordance with the provisions of the Environmental Planning & Assessment Act 1979 as it existed immediately prior to the commencement of the amendments to that Act in 1998. 2. The applicant is required to make an application to the Heritage Council pursuant to Part 4, Division 3 of the Heritage Act 1977 in respect of the development as identified in DA U95-00516. 38. As to the notice of motion filed by the Heritage Council of New South Wales the following order is made:- 1. The Court orders the notice of motion be dismissed. 2. The Court orders each party to pay its own costs. 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.