Land and Environment Court of New South Wales CITATION : Sandig & Anor v Ku-ring-gai Council [2001] NSWLEC 74 APPLICANTS PARTIES : David & Mina Sandig and Palmlace Pty Ltd RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10924; 10925 of 2000 CORAM: Sheahan J KEY ISSUES: Question of Law :- statutory construction - integrated development - interim heritage order - application to demolish item Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Heritage Act 1977 Land and Environment Court Act 1979 Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1981) 147 CLR 297; CASES CITED: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Western Australia v The Commonwealth (1975) 134 CLR 201 DATES OF HEARING: 15/03/2001 DATE OF JUDGMENT: 04/19/2001 APPLICANT Barrister Mr P D White Solicitors Philip Densham White LEGAL REPRESENTATIVES: RESPONDENT Barrister Mr A Galasso Solicitors Pike Pike & Fenwick JUDGMENT: IN THE LAND AND Matter No: 10924-5 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 19 April 2001 DAVID and MINA SANDIG, PALMLACE PTY LTD Applicants v KU-RING-GAI MUNICIPAL COUNCIL Respondent JUDGMENT Introduction 1. These two class 1 appeals were commenced on 21 September 2000 against the deemed refusal of the council to grant consent to development applications ("DA") 956 and 957 of 2000. 2. DA 956/00 seeks boundary adjustment - subdivision, and DA 957/00 seeks approval for the demolition of the whole of an existing dwelling, and the construction of a new dwelling, at 41 Nelson Street, Gordon. 3. The purpose of this judgment is to deal with a preliminary question of law posed in the following terms, primarily in respect of DA 957/00 (matter 10924 of 2000): Whether pursuant to Section 63(2) of the Heritage Act, the Heritage Council is required to advise the consent authority that it would refuse the application; and if so, whether pursuant to Section 91A(4) of the Environmental Planning and Assessment Act 1979 this Court on appeal is required to refuse the appeal. 4. Three other questions of law were raised, but are now the subject of agreement between the parties, and the issue before the court requires the construction of relevant provisions, and of the interrelationship among them, they being variously contained in the Heritage Act 1977, the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), and the Land & Environment Court Act 1979 ("the Court Act"). The factual background 5. The parties have agreed upon a statement of facts from which the following are noted. 6. The two DAs were lodged with the council on 10 August 2000, but, on 18 July 2000, council had resolved to: (a) prepare a Draft Heritage LEP that included the property at 41 Nelson Street (Lot 2), Gordon, and; (b) apply to the Heritage Council for an Interim Heritage Order to protect 41 Nelson Street, Gordon from demolition. 7. On 24 and 26 July 2000 a copy of "Draft LEP 22" was forwarded to the Heritage Office for consideration. A copy was forwarded to the Department of Urban Affairs and Planning on 20 September 2000 for gazettal. 8. On 16 October 2000, the Minister for Urban Affairs and Planning made, and on 20 October gazetted, Interim Heritage Order ("IHO") 26 in respect of 41 Nelson Street Gordon. 9. The parties are agreed that a consequence of the making of IHO 26 is that DAs 956-7/00 became "integrated development" applications. 10. It is also agreed that the existing dwelling at 41 Nelson Street is not a danger to the users or occupiers of that building, the public, or a section of the public, that it is not intended to move the existing dwelling to other land, and that demolition is not sought for any such purpose. The statutory framework 11. Relevant statutory provisions were inserted in the various Acts in 1997 when the "integrated development" regime was introduced. The relevant current provisions of each Act should be set out for ease of reference. The Heritage Act 12. Section 24 of the Heritage Act gives the Minister power to make an IHO for "a place building work relic movable object or precinct", which the Minister considers may, on further enquiry or investigation, be found to be of state or local heritage significance. The balance of Part 3 of the Act deals with the making of such orders, by either the Minister, or a council so authorised by him. An IHO remains in force for twelve months, or such shorter period as may be specified, and it can be revoked (see s 29). 13. The effect of an IHO is dealt with in Part 4 of the Act. Section 57 provides, inter alia, as follows: (1) When an interim heritage order … applies to a … building …, 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 the building or work, … 14. Subdivision 1 of Division 3 deals with applications for approval and contains the following relevant section: 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. 15. Where the term "approval body" is used in the Heritage Act, it applies, in respect of an IHO made by the Minister, to the "Heritage Council" (s 56). "Integrated development" is also defined in s 56 to have the same meaning as it does in s 91 of the EP&A Act. 16. Section 62 of the Heritage Act provides for various matters which the approval body "shall take into consideration" (my emphasis) in determining an application for approval, and s 63 provides relevantly as follows: (1) Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval. (1A) The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979. (2) Where: (a) an application for approval is made to demolish the whole of a building or work, or (b) an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work, the approval body shall determine that application by refusing approval. (3) Nothing in subsection (2) prevents the approval body from approving an application referred to in that subsection if: (a) it is of the opinion that the building or work constitutes a danger to the users or occupiers of that building or work, the public or a section of the public, or (b) it is a condition of the approval that the building or work be relocated on other land. … 17. Section 64 is entitled "Notice of determination", and provides: (1) The approval body shall give notice in writing of its determination of an application for approval to the applicant. (2) Where the approval body determines an application for approval by granting approval subject to conditions or by refusing approval, the notice shall: (a) indicate the reasons for the determination, and (b) except in relation to the determination of an application referred to in section 63(2) which is required to be determined by refusing approval, notify the applicant that he or she has a right of appeal under this Act against the determination. 18. Subdivision 1 of Division 4 deals with appeals in these relevant terms: 70 Appeal to the Court against certain determinations of the Heritage Council An applicant dissatisfied with a determination of the Heritage Council with respect to an application for approval made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63(2), may appeal to the Minister or, in the case of the determination of an application for approval in respect of integrated development, to the Court: (a) within 12 months after the date on which the applicant received notice of that determination, … 70A Appeal to the Court against certain council determinations An applicant dissatisfied with a determination of a council with respect to an application for approval made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63(2), may appeal to the Court: (a) within 12 months after the date on which the applicant received notice of that determination, or … 19. It is to be noted that both s 70 and s 70A specifically exclude applications referred to in s 63(2), and that nowhere else in the Heritage Act is there provision for an appeal against the determination of an application referred to in s 63(2). The EP&A Act 20. Division 5 of Part 4 of the EP&A Act is entitled "Special Procedure for Integrated Development". Section 90 applies the Division to "integrated development", which s 91 defines as follows: (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: … Heritage Act 1977 - s 58 - approval in respect of the doing or carrying out of an act, matter or thing referred to in s 57(1) … (4) Development is not integrated development in respect of the approval required under section 57 of the Heritage Act 1977 if the approval that is required is the approval of a council. 21. Section 91A deals with "Local development that is integrated development", and requires (in s 91A(2)) that: the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. 22. Section 91A goes on to provide: (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval: (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent: (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and (iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other Act or law. (6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination. 23. Division 8 of Part 4 of the EP&A Act deals with "Appeals and related matters". Section 97 deals with appeals by an applicant in respect of a development application, and relevantly provides as follows: (5) If: (a) an appeal has been made under this section relating to a development application, and (b) the application is one: (i) in relation to which the concurrence of a Minister or public authority is required under this Act, or (ii) for consent to carry out integrated development that involves an approval body (within the meaning of Division 5), that Minister, public authority or approval body must be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal. The Court Act 24. Section 39 of the Court Act relevantly provides as follows: Powers of Court on appeal (1) In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart form this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) 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. (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 of approval has been granted; and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) Notwithstanding any other provision in 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 the application relates to integrated development within the meaning of section 91 of that Act: (a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act; and (b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval; and (c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body. Section 93 of that Act applies to a development consent granted as a result of the appeal. (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. The council's contentions 25. Mr Galasso, on behalf of the council, essentially argues his case as follows. 26. The relevant DA in this case involves the demolition of the whole of an existing dwelling and development consent is required. As the IHO on 41 Nelson Street was gazetted on 20 October 2000, demolition cannot be carried out without approval by the Heritage Council (s 57 of the Heritage Act). 27. Section 63(1) gives the Heritage Council the general discretion to determine the demolition application. Section 63(1A) provides that: The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979. 28. Section 63(2) then provides that where an application is made to demolish the whole of the building, the approval body shall determine that application by refusing approval. The exception is provided for in subsection (3), which is concerned with removing danger and relocation, neither of which, it is agreed, is relevant in this case (see par 16 above). 29. The Heritage Council is, therefore, obliged to refuse approval, and has, by force of s 63(2), no discretion to make any other decision. 30. Section 70 specifically excludes appeal rights in respect of action under s 63(2). 31. Where a consent authority receives notification from an approval body - as in this case the council received a notification from the Heritage Council - that the approval body would not grant approval - the consent authority is obliged to refuse the development consent. (EP&A Act s 91A(4)). For the purposes of determining such an integrated development application, the consent authority has no further discretion. 32. Section 39(2) of the Court Act gives the court all the functions and discretions of the body whose decision is the subject of the appeal, but no more than those. In this case the council's function and discretion are limited and constrained by s 91A(4), so the court's power is equally constrained. 33. While it may be said that s 39 (6A)(b) of the Court Act serves to extend the court's jurisdiction beyond the interaction between s 39(2) of the Court Act and s 91A(4) of the EP&A Act, Mr Galasso submits that, this case being a Heritage Act s 63(2) situation, s 39(6A)(b) does not extend the court's jurisdiction. He notes the absence of a discretion to grant an approval under the Heritage Act, and the absence of a right of appeal, in the s 63(2) circumstances, in the Heritage Act. 34. Section 39(6A)(b) contemplates an approval body deciding not to grant approval. In this case there is no statutory power for the approval body to do otherwise than refuse approval unless the application comes within the exception under Heritage Act s 63(3). 35. As Mr Galasso says (in par 33 of his written submissions): … by reason of Subsection 63(2) of the Heritage Act, there is simply no discretion in the Heritage Council, and thus the Court on appeal, to determine, other than by refusing, an application for approval under the Heritage Act . 36. Mr Galasso argues that such a constraint upon the court's power is entirely consistent with what is contemplated in the Heritage Act. Normally where both development consent and another approval are required, rights of appeal in favour of an applicant arise under both Acts, and there is an intention of integrated assessment and determination, up to and including the court stage. However, where the circumstances involve complete demolition of an IHO building, there is no right of appeal in the Heritage Act, and the other relevant provisions of the three Acts reflect that position. 37. As Mr Galasso says (par 36): ..Clearly, the legislature intended that where a building was to be demolished, save for a Subsection 63(3) circumstance, the building was not to be demolished, and there was clearly contemplated to be no right of appeal against that result . The absence of such an appeal right in this regard is acknowledged by Subsection 64(2) of the Heritage Act. 38. The court has no jurisdiction to create a right of appeal where none exists. The court is not entitled to hear and determine the appeal in this case other than by refusing it, pursuant to Court Act s 39(2) and EP&A Act s 91A(4), and that jurisdiction cannot be extended by virtue of Court Act s 39(6A)(b). Heritage Act s 63(2) is not subject to s 63(1A). All Court Act s 39(6A) does is roll two appeals into one hearing, but s 63(2) specifically provides that there is no right of appeal. 39. Accordingly, Mr Galasso argues for the questions to be answered in the affirmative. The applicants' contentions 40. Mr White, for the applicants, points out that the dwelling DA depends upon the subdivision DA, which does not attract the attention of the Heritage Act, and the two matters have been running together in the court's list as an overall package of proposals (involving a third matter not currently before the court) for one particular site. 41. In these circumstances, no Ministerial order authorising the council to make an IHO has appeared in the Government Gazette, but the Minister himself has made an IHO in respect of an alleged item of local heritage significance, and there is no right of appeal (Heritage Act s 29). If the council had made it, there would be a right of appeal to the court (Heritage Act s 30). Draft LEP 22 provides for a right of appeal. 42. Mr White complains that the IHO in this case was made on the recommendation of the Heritage Office without any independent enquiries. The IHO rests entirely upon the fact that the council submitted that the item may be found to be of local heritage significance. That matter has not been established, at least not yet. Prior to the purchase of the subject allotments by the applicants, the existing house had not been considered, nor was it listed as, a heritage item. 43. At the hearing of these appeals the applicants propose to rely upon evidence from expert heritage architects to establish that the house does not have local or indeed any heritage significance. 44. Mr White says (in par 4.9 of his submissions): A proper reading of the legislation and procedural fairness requires (sic) that the applicants be allowed to ventilate the merits of their applications in a hearing before the Court. 45. He submits that Galasso's submissions are ill-conceived, and he relies upon EP&A Act s 91A(5). He also says that Court Act s 39(6A)(b) does not bind the court to refuse the application for consent, and that Heritage Act s 63(2) is irrelevant to integrated development. The court cannot be told by statute how it is to decide a case. It must be able to assess for itself, on the merits, if the building has any significance. Statutory Construction 46. In reply to Mr White, Mr Galasso relies on "the clear words of the statutes" to show that the consent authority, and hence the court on appeal, are constrained in the circumstances of this case. Heritage Act s 63(2) is specifically excluded from the facultative provisions upon which Mr White relies. 47. In order to answer the question "no", the court would have to say that s 39(6A) of the Court Act overruled s 70 of the Heritage Act, and no such legislative intention is clear in its terms. 48. When ascertaining the intention of a Parliament, the court is required to promote the purpose or object of the statutory instrument, in preference to any construction that would not promote that purpose or object. This is a requirement of s 33 of the Interpretation Act 1987, and, in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1981) 147 CLR 297 (at 304-5), the High Court said: It is an elementary and fundamental principle that the object of the court in interpreting a statute 'is to see what is the intention expressed by the words used' … It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say … Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking 'nothing remains but to give effect to the unqualified words' … There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. 49. Words should not be read into any statute in the absence of a clear necessity to do so. See Western Australia v The Commonwealth (1975) 134 CLR 201 (at 251 per Stephen J), and also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Conclusion 50. The legislative purpose of the IHO system is clearly to prevent the demolition of a building during the limited life of an IHO, while a proper examination of the item is carried out. 51. Such an examination, equally clearly, cannot be carried out by this court in an appeal such as those currently before it. 52. The proper purposive interpretation of the integrated development provisions, as they appear in the three Acts quoted above, is to simplify the process of the assessment of proposals that require both development consent and other statutory approvals, such as by the Heritage Council. 53. In those circumstances, there is nothing at all inconsistent between, on the one hand, the regime of Heritage Act s 63(2) working to preserve the subject of the IHO for no more than 12 months, and, on the other, the exclusion of a right of appeal against the imposition of that limited-term IHO. 54. I have concluded that Mr Galasso's submissions are clearly correct, and that both parts of the question posed should be answered "Yes". In other words, at least while the IHO is extant, the Heritage Council is obliged to advise the consent authority that it would refuse the application to demolish, and the court, like the local council at first instance, is required to refuse consent to the DA in the appeal in matter 10924 of 2000. 55. Both matters should be listed for callover by the Registrar on Friday 27 April 2001. The parties may approach the Registrar to include also any other related proceedings in her list for that day. 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