Nettheim v Minister for Planning and Local Government & Anor [1988] NSWLEC 138

Land and Environment Court of New South Wales

CITATION : Nettheim v Minister for Planning and Local Government & Anor [1988] NSWLEC 138 APPLICANT David Cosman Nettheim

FIRST RESPONDENT

Minister for Planning and Local Government PARTIES : SECOND RESPONDENT

Bevelon Investments Pty. Limited

FILE NUMBER(S) : 40139 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Heritage (Amendment) Act 1987. lee Smith v. East Elloe Rural District Council, [1956] ; Calvin v. Carr [1980] ; CASES CITED: Forbes v. N.S.W. Trotting Club Limited,; Limited v. Glasson & Anor., (1987) ; Sydney Municipal Council v. Campbell [1925] DATES OF HEARING: 14/03/88 DATE OF JUDGMENT: 09/21/1988

APPLICANT Ms. Kirillova LEGAL REPRESENTATIVES: RESPONDENT David Brigden Christine Hanson

JUDGMENT:

His Honour: The applicant seeks a declaration that the decision of the Minister for Planning and Local Government on 4 July 1988 to revoke Permanent Conservation Order No. 151 was invalid. The decision of the Minister on 4 July 1988 was the second decision to revoke PCO No. 151 and was taken during the hearing of the challenge to the first.

On 16 August 1988, I published reasons for my conclusion that the decision of the Minister for Planning and Local Government on 12 April 1988 to revoke PCO No. 151 was invalid. On 30 August 1988, I made a declaration to that effect. The judgment and the order in matter No. 40086.88 have been tendered in these proceedings and the findings of fact are not challenged in these proceedings. In Nettheim v. The Minister and Bevelon (No. 1), I determined that the Minister's decision on 14 April 1988 to revoke PCO No.151 was vitiated by the circumstance that he failed to have sufficient regard to the report of Commissioner Simpson presented to him pursuant to s.54 of the Heritage Act and that he failed to have regard to identifiable and available material of relevance and significance to the subject matter of his decision which was within the knowledge of the Department. With respect to the last mentioned matter, I was of the opinion that the Minister was obliged to have regard to certain material in Exhibits 'AG' and 'AJ' concerning the future of the Capitol Theatre. However, I rejected the submissions that the Minister was required to take into account a number of other matters nominated by Mr. Nettheim and that the Minister had denied procedural fairness to the applicant or to Actors' Equity in the course of making his decision. Further, I was of the opinion that although the amendments to the Heritage Act in 1987 had the effect that the Minister no longer has the power to revoke a PCO unless he receives a recommendation from the Heritage Council so to do, the decision of the Minister in April 1988 was saved by the transitional provisions of the Heritage (Amendment) Act 1987.