Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141 Hearing dates: 6 May 2019 Decision date: 19 June 2019 Before: Leeming JA at [1]; McCallum JA at [97]; Emmett AJA at [124] Decision: 1. Appeal allowed.

2. Set aside orders 1, 2 and 3 made on 12 November 2018, and in lieu thereof, order that the proceedings be dismissed with costs.

3. The first respondent to pay the appellant's costs of the appeal. Catchwords: JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant's land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose Legislation Cited: City of Sydney Act 1988 (NSW), s 40 Environmental Planning and Assessment Act 1979 (NSW), s 4.46 Heritage Act 1977 (NSW), ss 4, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 36, 38, 40, 45, 57, 59, 62, 63, 123, 125, 127, 156, 157 Interpretation Act 1987 (NSW), s 33 Land and Environment Court Act 1979 (NSW), s 58 Local Government Act 1993 (NSW), ss 204, 205 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Mulpha Australia Ltd v Central Sydney Planning Committee [2018] NSWLEC 179 Olefines Pty Ltd v Valuer-General of New South Wales [2018] NSWCA 265 Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 SAS Trustee Corporation v Miles [2018] HCA 55 Scully v Leichhardt Council (1994) 85 LGERA 109 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Category: Principal judgment Parties: Stamford Property Services Pty Ltd (Appellant) Mulpha Australia Ltd (First Respondent) Central Sydney Planning Committee (Second Respondent, submitting) Heritage Council of New South Wales (Third Respondent, submitting) Representation: Counsel: B Walker SC, M Astill (Appellant) N Hutley SC, C Ireland (First Respondent)