Land and Environment Court of New South Wales CITATION : Woollahra Municipal Council v. Terry George Andriotakis [1998] NSWLEC 82 APPLICANT Woollahra Municipal Council PARTIES : RESPONDENTS Terry George Andriotakis Efsevi Andriotakis Gregory Nicholas Malouf FILE NUMBER(S) : 40134 of 1998 CORAM: Talbot J KEY ISSUES: :- Local Government Act 1993 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 26, 34, 75, 76, 76A Woollahra Local Environmental Plan 1995 cll 8, 26, 28 - Amendment No 12 CASES CITED: DATES OF HEARING: 3 - 4/08/98 DATE OF JUDGMENT: 08/11/1998 APPLICANT Mr J J Bingham (Solicitor) Deacons Graham & James Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S B Austin QC Mr G B Newport (Barrister) Perkes & Stone Solicitors JUDGMENT: REASONS FOR JUDGMENT On 1 July 1998 the regime for separate approvals under the Environmental Planning and Assessment Act and the Local Government Act underwent radical change. The Environmental Planning and Assessment Amendment Act 1997 (the amended EPA Act) changes the Environmental Planning and Assessment Act 1979 (the unamended EPA Act) by replacing the existing Pt 4, adding four new parts, namely Pts 4A, 4B, 4C and 5A, and adding new divisions in Pt 6. The provisions of the Amending Act have been reported as containing the most significant and fundamental reforms to the structure of the land use, planning, building and development reforms since 1980 when the EPA Act first came into effect. It is not therefore surprising that there are savings and transitional provisions that will apply to the new legislation. In a circular to all councils in New South Wales, the Department of Urban Affairs and Planning advised that the savings and transitional provisions are needed to recognise the rights of people under the existing legislation, to keep those rights and to set out how those rights are dealt with. The Department notes in the circular that the role of savings and transitional provisions is to keep existing rules in place for applications that have started, but are not complete, at the time the legislation comes into effect, recognising that it is important that the rules are not changed half way through a process when time and money have been committed to a project. These proceedings relate to the status of an approval for the demolition of the existing house, garages, pool and driveway at 48 Darling Point Road, Darling Point given by Assessors Nott and Murrell on 11 March 1998 pursuant to s 68 of the Local Government Act 1993. The appeal, lodged on 17 December 1997, was initially against the applicant's deemed refusal of the demolition application, but on 19 January 1998, the applicant refused to give approval for the demolition on the following grounds:- 1. The subject building is considered to have heritage significance and, consequently, should be retained. 2. The subject building is part of a rare grouping of buildings which have been identified as having heritage significance. Should the proposal proceed, it would necessitate the demolition of this building which is considered to diminish the significance of the heritage value of this grouping. 3. The demolition of the existing building would not be in the public interest. The respondents are the owners of 48 Darling Point Road, Darling Point. Prior to the determination by the Assessors, on 10 March 1998, Justice Sheahan determined six preliminary questions of law in the appeal proceedings. The answers to the questions had the effect that the Assessors determined the issues in respect of the demolition application without reference to any aspect of heritage values. On 6 April 1998 the council filed a summons for leave to appeal in the Court of Appeal against the judgment of Sheahan J. The applicant's leave application and appeal was heard by the Court of Appeal on 7, 8 July 1998. The Court of Appeal has reserved its decision. At the time of the determination of the application for approval to demolition made pursuant to s 68 of the Local Government Act 1993, the subject property was not listed as an heritage item and it was not situated in a heritage conservation area. On 3 July 1998 Amendment No 12 to Woollahra Local Environmental Plan 1995 (WLEP) was made and notified in the New South Wales Government Gazette. Amendment No 12 had the effect, inter alia, of listing the dwelling house on the site known as "Leamington" and its interior as an heritage item in Sch 3 and it also included the site in a heritage conservation area. The dwelling house has not been demolished. The respondents have not lodged a development application for the demolition of the dwelling house on the site. The Provisions of WLEP and Amendment No 12 Under WLEP, which was gazetted on 10 March 1995, the site is zoned 2(b) - Residential "B" zone. Clause 8 of WLEP provides that development for the purpose of residential flat buildings is development which may be carried out in the zone only with development consent. There is no reference to demolition of buildings in the development control table in cl 8. Pursuant to cll 26 and 28 of WLEP, a person shall not demolish a building that is an heritage item or is within a heritage conservation area, except with the consent of the council. The council shall not grant consent to an application unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance. Sheahan J determined that the Court was not empowered to take into consideration the heritage significance of the building and its curtilage in determining the application for approval to demolition of the building under the Local Government Act and, accordingly, the Assessors did not do so. Amendment No 12, made on 3 July 1998, amended WLEP by inserting for the first time in Sch 3 as matter relating to Darling Point Road, Darling Point, the following matter:- Darling Pt. Rd, Darling Pt. 48 Leamington - building including interior It is apparent therefore why, when Assessors Nott and Murrell made their determination, the subject building was not an heritage item and the site was not in a heritage conservation area. That situation changed on 3 July 1998 when Amendment No 12 was made. One of the effects of the amended EPA Act is to introduce demolition of a building into the definition of development in s 4 of the EPA Act. According to the council this has the result that demolition of a building preparatory to the erection of a new residential flat building is development for the purpose of a residential flat building within the meaning of paragraph 5 of the Development Control Table for the 2(b) zone in cl 8 of WLEP and therefore now requires development consent. Prior to the most recent amendments to the EPA Act a provision for or with respect to controlling the demolition of buildings could be made in an environmental planning instrument in accordance with s 26(1)(d). The council asserts that cll 26 and 28 have been made in accordance with s 26(1)(d) of the unamended EPA Act. After Amendment No 12 was made, consent is required under cll 26 and 28 for the demolition of the existing building as an heritage item, and because it is in a heritage conservation area. If the council's argument is accepted, this means, subject to the effect of the savings and transitional provisions, that the respondents now require development consent under cl 8 of WLEP in accordance with the Development Control Table and that they must also obtain consent pursuant to cl 26 and cl 28 before the building can be demolished. The Transitional and Savings Provisions Clause 29 Clause 29 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (the Regulation) provides generally that development consisting of demolition (being a relevantly prescribed activity specified in the Table to s 68 of the Local Government Act 1993 (the unamended LG Act) may not be carried out except with development consent. However, by dint of cl 29(f), the clause does not apply to: 1. any development for which development consent was required immediately before 1 July 1998 by an environmental planning instrument; 2. any development for which development consent is required by any new provision (made on or after 1 July 1998) of an environmental planning instrument made before 1 July 1998; 3. any development for which development consent is required by any new provision of an environmental planning instrument that was in the course of preparation before 1 July 1998 but not made before or on that date and is made after the appointed day and before 1 October 1998. Clause 29 has effect despite the existing provisions of any environmental planning instrument made before 1 July 1998 but is subject to any new provision (made on or after 1 July 1998) of an environmental planning instrument made before on or after 1 July 1998 (subclause (7)). Notwithstanding difficulties of construction that have no bearing on this case, the Court is satisfied in the present circumstances that the new provisions added to WLEP by Amendment No 12 fall within the second or third category identified in cl 29(f) with the consequence that development consent is not necessary in respect of the demolition of the subject building by reason of any requirement in cl 29 of the Regulation. Clause 45 Clause 45(1) of the Regulation relevantly provides that an approval for a prescribed activity, which includes demolition of a building, obtained pursuant to s 68 of the unamended LG Act "is taken to be a development consent granted under the amended EP&A Act 1979". Clause 45(3) of the Regulation provides:- (3) However, an approval for a prescribed activity granted under the unamended LG Act 1993 is not taken to be a development consent if: (a) the activity comprises development that, immediately before the appointed day, required development consent under the unamended EP&A Act 1979, and (b) the development consent referred to in paragraph (a) has not been obtained. A development consent for demolition work arising under cl 45(1) is taken by cl 45(4) to be subject to the conditions prescribed by Part 7 of the EPA Regulation (as amended) which incorporate the Building Code of Australia together with other structural and safety standards. Mr Bingham contends, on behalf of the council, that although the effect of cl 45(1) may be to deem the demolition approval given by the Assessors to be a development consent for the purpose of cl 8(2) of WLEP, the approval is not a consent within cll 26(1) or 28(1), which respectively now prohibit demolition of the building except with the consent of council. He submits that in the present case the context and subject matter indicate and require that an approval under s 68 of the unamended LG Act to demolish, granted on the basis that the heritage significance of the building to be demolished is expressly excluded from consideration, is not a consent under cll 26(1) or 28(1) of WLEP. Clause 45(1) goes no further than providing that an approval for a prescribed activity granted and in force is taken to be a development consent. Applying the provision to this case, the approval for the demolition of the subject building is taken to be a development consent granted under the amended EPA Act, which now expressly includes demolition as development. I agree with Mr Bingham that the purpose of the provision in cl 45 is to avoid the necessity of obtaining the same approval under the amended EPA Act (now required because of the amended definition of "development" and the transferral of local government approvals to the amended EPA Act) that had been obtained under the Local Government Act before 1 July 1998. It appears to me that the real question is whether a development consent for demolition of a building given for the purpose of cl 8(2) of WLEP can be regarded as a consent for all purposes under the EPA Act including cll 26 and 28 of WLEP. A significant matter that must be addressed in order to answer the question is whether cl 45(3) raises the distinction between demolition as such, which did not require development consent under the unamended EPA Act, and demolition of a building which is an heritage item or is situated within a heritage conservation area which always required consent pursuant to cll 26 or 28 of WLEP. Given that demolition was not included in the definition of development in s 4 of the EPA Act, it is necessary to determine whether before the amendments, the subject of cll 26 and 28, was development, particularly where the proposed activity is the demolition of a building. In the case of the erection of a building and subdivision of land, which are also activities controlled by cll 26 and 28, they are included in the definition of development in s 4 of the EPA Act. Clauses 26, 27 and 28 refer to development and cl 26(2) refers to a development application, whereas cl 28(2) in the same context does not. Any doubt or inconsistency in this respect must be resolved by reference to the provisions of the EPA Act which controls the making and operation of environmental planning instruments. An activity which is not otherwise development for the purposes of the EPA Act will not become development solely as a consequence of the provisions of an environmental planning instrument. Section 26(1)(d) of the unamended EPA Act enables an environmental planning instrument to make provision for or with respect to controlling the demolition of buildings. Section 26 did not have the effect of making the demolition of buildings development for the purposes of the unamended EPA Act. It should be noted in passing however that after 1 July 1998, the amendments do incorporate into the definition of development in s 4 any act, matter or thing referred to in s 26 that is controlled by an environmental planning instrument. That demolition was not intended to be taken as or deemed to be development under the unamended EPA Act is clear from s 75(1), which then provided that in Part 4 "a reference to development includes a reference to any other act matter or thing referred to in section 26 which is controlled by an environmental planning instrument". The use of the words "reference" and "other" make good the distinction. By the means of s 26(1)(d) and s 75(1) demolition could be controlled by an environmental planning instrument and made subject to the same restrictions which applied to development under s 76. Although demolition of a building could be controlled by that statutory device, it did not mean that it thereby became development for the purposes of the unamended EPA Act. Irrespective of whether s 45(3) is referring to an activity that comprises development as defined before or after the date of the amendments, demolition is not an activity that "comprises development" that immediately before 1 July 1998 required development consent under the unamended EPA Act. The only reason that the demolition of a heritage building required consent of the council under WLEP is because it was controlled pursuant to s 26(1)(d) of the unamended EPA Act. This approach is supported by the reference to a non-specific "consent of the council" in cll 26(1) and 28(1) of WLEP notwithstanding the sporadic reference to development and a development application elsewhere in those clauses. I have reached the uncontroversial conclusion that cl 45(1) applies to the approval granted by the Assessors. In my opinion, notwithstanding the council's argument to the contrary, cl 45(3) does not apply in the circumstances of this case to require the respondents to obtain a further development consent. For reasons that will become apparent, that finding must be confined to the effect of the Regulation. The Present Position under WLEP as amended For the reasons already outlined above, the respondents may rely on the approval given by the Assessors as a development consent to development contemplated by cl 8 of WLEP, namely demolition of the subject building for the purpose of a residential flat building. Division 4 of the unamended EPA Act which contained ss 75 and 76 has been repealed. The carrying out of development is now subject to a threefold classification that is established by Division 1 of Part 4 in ss 76, 76A and 76B. Section 76A applies in respect of development that needs consent. 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. "Development consent" is defined in s 4 as consent under Part 4 to carry out development. The definition of development has been amended to include the demolition of a building. Clause 26 of WLEP provides that a person shall not, in respect of a building that is an heritage item, demolish the building. Clause 28 of WLEP provides that a person shall not, in respect of a heritage conservation area, demolish a building within the area. Mr Austin QC submits, on behalf of the respondents, that cl 45 of the Regulation has effect as a classic example of a savings provision. It renders the approval for demolition given under the old regime a consent granted under the new regime. There is no dispute between the parties that cl 45(1) means that the s 68 approval may be taken to be a development consent granted for the purpose of cl 8 of WLEP. Therefore, and in the light of my earlier finding in regard to the effect of cl 45(1), WLEP must be construed on the basis that there is an existing development consent for demolition of the building. A distinction needs to be made between the amendments made to the legislation on 1 July 1998 and the amendments made to the environmental planning instrument on 3 July 1998. They are not related. It seems to me that the amendments to the statutory regime have no bearing on the way cll 26 and 28 are to be applied as delegated legislation. The parties are in the same position they would have been in if a development application for demolition had been made pursuant to cl 8 of WLEP and granted on 1 July 1998 and then subsequently Amendment No 12 came into effect on 3 July 1998. Either the development consent granted on 1 July 1998 would be invalid because the council failed to take into account the provisions of cll 26 and 28, or the respondents would be required to obtain a further development consent to demolish the heritage item before the demolition could proceed. It is well settled that an environmental planning instrument must be construed so as to allow its practical application. On 1 July 1998 there was only one relevant requirement for approval to demolition and that was a development consent to development for the purpose of a residential flat building pursuant to cl 8 of WLEP. That consent was obtained pursuant to cl 45(1). When the LEP was amended on 3 July, a further but different category or element was introduced in respect of the subject building. It became an heritage item and was thereafter situated in a heritage conservation area. On that day, irrespective of whether development consent was otherwise required, demolition could not take place without a consent in accordance with cll 26 and 28 of WLEP. The consent taken to have been granted per force of cl 45(1) carried no weight as a consent required under cll 26 and 28. It was no purpose of cl 45 to obviate a requirement for development consent in respect of the demolition of an heritage item arising out of an amendment to the LEP. It could not have been the intention of the maker of the Regulation for each approval decision to be examined in order to determine the subject matter considered or the extent of consideration given by the council during the decision making process before the approval can be taken to be a development consent under cl 45(1). The legislator would have been aware that the matter required to be considered by the consent authority before it determined an application for approval under the unamended LG Act differs in many respects from the matters required to be considered under the EPA Act. Clause 45(3) makes this clear. However, that is not what is required here. The question is whether cl 45(1) can be construed, in the context and having regard to its purpose to avoid duplicity, as providing for an approval given for one purpose to be taken as a consent given for another purpose. The two conflicting purposes in this case are demolition as part of the development for a residential flat building on the one hand, and demolition of a heritage building on the other. The first is inextricably concerned with the proposed development for the residential flat building, while the second is concerned primarily with preservation and conservation of the existing building for its own worth as an heritage item. They must be regarded as separate and distinct requirements related to different categories of development. The Court is not satisfied that it was ever intended that cl 45(1) would operate in a way that had the incidental consequence of avoiding a requirement for consent following a subsequent amendment to an LEP where the latter is made for a purpose unrelated to the change in the regime for approvals that applied across the board throughout the State, as from 1 July 1998. That approach is consistent with the operation of cl 29 of the Regulation which requires development consent to be obtained pursuant to the Regulation unless it is already a requirement under any of the instruments or new provisions referred to in cl 29(f). Where there is a provision in an environmental planning instrument which requires consent for development, then cl 29 leaves any application in respect of that development to be dealt with in accordance with the instrument. Clause 45 merely deals with the distinct circumstance where there is an existing approval. I am satisfied therefore that, notwithstanding the approval given by the Assessors and cl 45(1) of the Regulation, the effect of Amendment No 12 is that consent of the council is required pursuant to cll 26 and 28 before the building can be demolished. The Saving of the Effect of the Existing Consent under the EPA Act The respondents claim that nothing in cll 26 and 28 of WLEP, following the making of Amendment No 12, requires a further development consent to authorise the carrying out of development in accordance with the approval now taken to be a development consent pursuant to the Regulation cl 45(1) because that consent has, in effect, been granted and is in force within the meaning of s 109B of the EPA Act. Section 109B was previously in Division 2 of Part 4 and is now found in Division 10 of the new Part 4, both dealing with existing uses. To the extent that the approval given under s 68 of the unamended LG Act is a development consent for the purpose of a residential flat building, no further consent is required. The problem for the present respondents, by seeking the protection of s 109B, is that they the do not have the benefit of a development consent to demolish an heritage item or a building located in a heritage conservation area. A requirement that they obtain development consent under cll 26 and 28 does not conflict with the purpose and intent of s 109B because they do not have a consent to demolish the heritage building in accordance with WLEP. The same reasoning must be applied in response to the respondents' argument that the consent they hold in accordance with cl 45(1) of the Regulation is a right or privilege accrued under WLEP protected by s 34(4) of the EPA Act. In effect they have a consent to demolish the building for the purpose of a residential flat building. What they do not have is a consent to demolish a heritage building. Accordingly, there is no right or privilege acquired or accrued in a relevant sense for the purpose of s 34. Section 34 does not operate in the future to give a legal effect to an existing consent that it does not already have. The Court has not been persuaded that ss 34 and 109B afford protection to the respondents in this case. Conclusion For the reasons outlined above the applicant is entitled to the relief claimed in the application. There has been no formal argument in regard to the question of costs, but the Court has not been made aware of any circumstances which would lead to the exercise of the Court's discretion in respect of costs otherwise than in favour of the successful applicant. The parties are granted leave, upon two days notice, to bring in the form of appropriate orders in accordance with the Court's determination. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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