C-Corp Nominees Pty Ltd v Inner West Council

[2024] NSWLEC 65

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

C-Corp Nominees Pty Ltd v Inner West Council [2024] NSWLEC 65

Hearing dates:

20 June 2024

Date of orders:

26 June 2024

Decision date:

26 June 2024

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

(1)   The appeal is dismissed.

(2)   The appellant is to pay the respondent’s costs of the appeal.

Catchwords:

APPEAL – appeal on questions of law – Commissioner’s decision to refuse development consent for development in a heritage conservation area – effect of development on heritage significance of area concerned – building to be demolished assessed in DCP as detracting and non-contributory element – Commissioner found assessment incorrect – whether asked wrong question – whether failed to consider relevant matter – error not established

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 3.42, 4.11

Land and Environment Court Act 1979 (NSW), s 56A

Comprehensive Inner West Development Control Plan 2016, Chapter E-1, ss 1.1, 1.3, 1.4, 3.1, 5.1.4

Environmental Planning and Assessment Regulation 2021 (NSW), cll 164, 166

Inner West Local Environmental Plan 2022, cl 5.10

Cases Cited:

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Category:

Principal judgment

Parties:

C-Corp Nominees Pty Ltd (Appellant)
Inner West Council (Respondent)

Representation:

Counsel:
Mr A Pickles SC and Mr C Koikas (Appellant)
Mr R Lancaster SC and Ms J Reid (Respondent)

Solicitors:
Sanford Legal (Appellant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/458519

Publication restriction:

NIL

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2023] NSWLEC 1746

Date of Decision:

07 December 2023

Before:

O’Neill C

File Number(s):

2022/354227

JUDGMENT

1. C-Corp Nominees Pty Ltd (C-Corp) appeals against the decision and orders of a Commissioner, O’Neill C, to dismiss an appeal and refuse a development application for development in a heritage conservation area. The appeal is under s 56A(1) of the Land and Environment Court Act 1979 (NSW) (Court Act) and is limited to questions of law. Although C-Corp raised five grounds of appeal, packaging the errors on questions of law in various ways, at the core of all of the grounds is a challenge that the Commissioner’s consideration of the heritage provisions of a development control plan miscarried.

2. To understand this challenge it is helpful to start with an explanation of the applicable development control plan that the Commissioner was obliged to consider in the determination of the development application, before examining what was the Commissioner’s consideration of that development control plan and whether that consideration miscarried in law.

The applicable development control plan

3. The development application sought consent for the demolition of existing buildings, including a two-storey building described as being in the “Victorian Italianate” style erected in 1885 but “heavily altered”, and the construction of a new residential flat building, at 5 Bruce Street, Ashfield (the land). The land is within a heritage conservation area, called the Federal Fyle Ashfield Heritage Conservation Area (Federal Fyle HCA), designated under the Comprehensive Inner West Development Control Plan 2016 (DCP).

4. The demolition of the existing buildings in the Federal Fyle HCA is permissible with consent on land in the applicable R2 Low Density Residential zone under cl 5.10(2)(a)(iii) of Inner West Local Environmental Plan 2022 (LEP). Whilst the erection of a building within a heritage conservation area is permissible with consent under cl 5.10(2)(e)(i) of the LEP, the use of such a building for residential accommodation (which includes residential flat buildings) is prohibited in the R2 Low Density Residential zone. To overcome this latter control, C-Corp sought to rely on existing use rights under Division 4.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and cll 164 and 166 of the Environmental Planning and Assessment Regulation 2021 (NSW) on the basis that the land was being used for a residential flat building at the relevant date.

5. Clause 5.10(4) of the LEP and various provisions of Chapter E1 - Heritage Items and Conservation Areas of the DCP regulate the matters the consent authority is required to consider in the determination of the development application for the demolition of the existing buildings on the land and the erection of the new residential flat building in their place. Clause 5.10(4) of the LEP provides:

“The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).”

6. Consistent with s 3.42(1) of the EPA Act, the provisions of Chapter E1 of the DCP provide guidance to applicants in applying for development consent and the consent authority in determining development applications for development involving heritage items or heritage conservation areas on the matters of giving effect to the aims of the LEP, facilitating development that is permissible under the LEP and achieving the objectives of land zones under the LEP.

7. The DCP achieves this purpose of providing guidance on these matters by, first, listing buildings, sites or places as heritage items, secondly, designating areas as being Heritage Conservation Areas (HCAs), and thirdly, classifying the buildings contained within the HCAs. The DCP ranks buildings within a HCA as being “contributory”, “neutral” or “detracting”. There are two types of contributory buildings, contributory building 1 and contributory building 2. Both terms are defined in s 1.4 of the DCP. Both types of contributory buildings are buildings identifiable as dating from a Key Period of Significance for the HCA, but a contributory building 2 has a greater degree of change than a contributory building 1. Neutral buildings are defined in s 1.4 of the DCP to be buildings that are either heavily altered to an extent where the construction period is uncertain or are from a construction period which falls outside a Key Period of Significance for the HCA. Detracting buildings are defined in 1.4 of the DCP to be “buildings from a construction period which falls outside a Key Period of Significance for the HCA that have a scale or form that is not consistent with the key characteristics of the area.”

8. Each of these definitions of contributory buildings, neutral buildings and detracting buildings turns on the construction period of the building falling within or outside a Key Period of Significance for the HCA. The Key Period of Significance for the HCA is identified in the Area Character Statements in Part 9 of Chapter E1 of the DCP. Buildings (other than heritage items) in the HCA are ranked by reference to the Key Period of Significance identified in the Character Statement for the HCA as being contributory 1 (Building ranking No. 1), contributory 2 (Building ranking No. 2), neutral (Building ranking No. 3), or detracting (Building ranking No. 4) buildings.

9. The Character Statement for the HCA in this case, the Federal Fyle HCA, identifies the Key Period of Significance as being “1879 to 1940s”. Buildings in the Federal Fyle HCA are ranked 1 to 4 depending on an evaluation of whether the building is identifiable as having been constructed within this Key Period of Significance (contributory 1 or 2 buildings) or its construction period is uncertain or outside the Key Period of Significance (neutral or detracting buildings).

10. The main building on the land in this case was ranked in the Federal Fyle HCA Character Statement as “4”, being a detracting building, with the style recorded as “Victorian Italianate”. Earlier, the Character Statement identified “non-contributory elements” as including “recent or heavily altered houses with difficult to reverse uncharacteristic alterations”. One of the examples of such houses given was “5 Bruce Street”, the subject site.

11. The DCP uses this classification of buildings in the Character Statement for the HCA as being contributory, neutral or detracting to determine the applicable heritage controls that apply to development on the land so classified.

12. Part 1 of Chapter E1 of the DCP explains how to use the heritage controls in Chapter E1. Relevantly, for a building within an HCA that is not a heritage item, reference is to be made to the “general HCA controls” (s 1.3). To identify these HCA controls, the DCP states that it is necessary to “determine which HCA (there are 49 areas covered in this DCP) your property is located within and refer to the specific character statement and guidelines in Part 9 of this Chapter. These will assist in applying the general controls to your property within the setting of your street” (s 1.3).

13. Part 3 of Chapter E1 of the DCP applies to HCAs. Subsection 1.1 of s 3.1 explains that:

“The unique character and heritage significance of each Heritage Conservation Area (HCA) is identified in the Area Character Statements in Part 9 of Chapter E1 (below), which includes each building and site within each HCA in accordance with the Building Rankings Tables…

The controls for HCA’s are based on the area Character Statements. To apply the controls in Chapter E1, which are used across all HCA’s, it is necessary to refer to the Character Statement for the relevant HCA.”

14. Parts 3 and 4 of Chapter E1 identify the controls for development in HCAs according to the classifications of the buildings in the Area Character Statements. The controls are of three types: those that apply to contributory buildings (both contributory 1 and 2 buildings), those that apply to new infill development and neutral or detracting buildings that new infill buildings replace, and those that apply to all buildings in a HCA (see s 3.1 of the DCP).

15. Part 3 groups the heritage controls in Part 3 in two parts, “first those that apply to contributory buildings and secondly those that apply to new (infill) development”. Subsection 1.1 of s 3.1 explains that:

“There are no specific controls for neutral or detracting places as they do not have heritage value, however should one of these buildings be replaced or have significant alterations, the ‘infill’ controls will apply to that place.”

16. The general controls for contributory buildings in HCAs are in s 3.2 and s 3.3. The general controls for infill development in HCAs, which also apply to neutral or detracting buildings, are in s 3.4.

17. These controls in Part 3 regulate the consideration that the consent authority must give in determining a development application to alter or add to a contributory building in the HCA or construct a new infill development in the HCA. As required by s 3.43(5) of the EPA Act, those controls are not inconsistent or incompatible with the provisions of the LEP, including cl 5.10 of the LEP: see North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 at 31 and Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87].

18. Part 4 contains controls for “particular building elements for buildings and structures within Heritage Conservation Areas” (s 3.1). The Explanatory Note in Part 4 describes its purpose as being “to provide controls for parts of buildings that would be found on either Heritage items or on buildings within an HCA”. The identified parts of buildings are: roofs, dormers, chimneys and skylights (s 4.1); verandas, porches and balconies (s 4.2); driveways, garages and carports (s 4.3); fences (s 4.4); and building materials, finishes and colour (s 4.5). The last of these building elements in s 4.5 includes a particular control (C6) for new infill development.

19. Whilst Parts 3 and 4 deal with construction work for heritage items and contributory, neutral or detracting buildings in a HCA, Part 8 deals with demolition of heritage items and contributory, neutral or detracting buildings in a HCA. The objectives and controls for demolition of a building differ depending on the classification as either heritage items and contributory buildings or neutral and detracting buildings. Demolition of a heritage item or contributory building is stated in s 8.1 as being “not supported by Council”. Demolition of neutral or detracting buildings is permissible but requires the support of a statement of heritage impact (SOHI). Section 8.1 provides:

“Demolition of neutral or detracting buildings within heritage conservation areas is permissible. Where demolition is proposed, it requires the support of a statement of heritage impact that specifically considers the impacts of demolition on the significance of the place or Heritage Conservation Area and which also adequately justifies why demolition is warranted. It must also be accompanied by the details for what will be replacing any building.

Where demolition is proposed of any nature, it requires the support of a statement of heritage impact that specifically considers the impacts of demolition on the significance of the place.”

20. This differential approach is reflected in the objectives of Part 8:

“O1 Buildings that are Heritage Items or are Contributory buildings are to be retained. Demolition will only be considered in exceptional circumstances.

O2 Where demolition of a building that is a Heritage Item or is within a Heritage Conservation Area is proposed, documentation requirements in this section are to be adhered to.”

21. As a consequence, Part 8 specifies different controls for heritage items and contributory buildings and for neutral and detracting buildings. One control is specified for neutral and detracting buildings (C1), which provides:

“Where demolition of a neutral or detracting building is proposed:

a) The application must include the design of the new development proposed for the site; and

b) A SOHI establishing that the demolition does not have an adverse impact on the adjoining buildings (that is both physical and contextual impacts) and how the new building addresses the heritage values of the precinct within which it is located (refer to requirements for infill buildings).”

The Commissioner’s consideration of the DCP

22. The Commissioner identified as one of the four primary contentions raised by the Council that: “The proposal results in an unacceptable impact on the heritage significance of the heritage conservation area.”: at [3]. That was the only contention the Commissioner addressed in determining the appeal.

23. The Commissioner identified, in the section entitled “Planning Framework”, the applicable provisions of cl 5.10 of the LEP and Chapter E-1 of the DCP. As to cl 5.10, the Commissioner identified that, by cl 5.10(2)(a)(iii), demolition of the existing building requires development consent and that, by cl 5.10(4), the consent authority, and the Court exercising the functions of the consent authority, must before granting development consent consider the effect of the proposed development on the heritage significance of the heritage conservation area concerned: at [11].

24. As to the provisions of Chapter E-1 of the DCP, the Commissioner quoted extracts of the provisions of Parts 3, 8 and 9 of Chapter E-1, being extracts from section 3.2, section 8.1 and the Federal Fyle HCA Character Statement: at [12] and [13].

25. The Commissioner referred to the evidence on the heritage contention. The Commissioner summarised the concern of three objectors who gave evidence on site that: “The existing building is worthy of retention for its contribution to the collective heritage significance of the heritage conservation area”: at [14]. The Commissioner referred to and evaluated the evidence of the parties’ heritage experts, Mr Moore for the Council and Mr Davies for C-Corp, in the section entitled “The existing building contributes to the collective heritage significance of the HCA.”: at [17]-[19].

26. Of importance given the Commissioner’s later acceptance of and agreement with Mr Moore’s evidence is the Commissioner’s summary of Mr Moore’s evidence about the classification of the building as detracting in [19]:

“According to Mr Moore, the classification of the existing building as detracting is incorrect, as the building dates from a key period of significance in the HCA. In his view, the building was not properly assessed, nor understood for its true substance behind an altered street façade. It’s potential for adaptive reuse and contributory value becomes obvious on proper inspection. Mr Moore identified the following extant fabric and details; original brickwork is largely exposed, two original chimneys (featuring ashlar render), terracotta hipped roof, original entrance doorframe and highlight, original external French doors at ground level, original four panel doors, original timber skirting and architraves, original timber fireplace mantles and cast-iron inserts, and original (but partly damaged) dining room decorative plasterwork ceiling. In Mr Moore’s view, the majority of the building’s fabric survives in a manner that can be respected, enhanced and add to the adapted house, notwithstanding the loss of the main stair, as the key spaces survive. The existing house has the potential for adaptation to achieve an attractive, contributory building to the HCA, with accommodation of high amenity.”

27. The Commissioner’s consideration of the effect of the demolition of the building on the heritage significance of the Federal Fyle HCA was set out in the section entitled “Consideration”: at [20]-[25].

28. In [20], the Commissioner stated that she accepted and agreed with Mr Moore’s evidence, including that the “classification of the existing building as detracting within the FF HCA is incorrect” and that “the existing building has been incorrectly assessed as falling within the category of ‘heavily altered houses with difficult to reverse uncharacteristic alterations’.”

29. In [21] and [22], the Commissioner explained her reasons for that agreement with Mr Moore that the classification of the building as detracting and non-contributory is incorrect, as well for her later finding in [25] that the effect of the demolition of the building will be detrimental to the heritage significance of the Federal Fyle HCA:

“The extant fabric (including the façades, original chimneys, the form of the roof, the original entrance and the French doors) is immediately identifiable, when viewed in the streetscape, as a substantial Victorian villa, despite the changes to the street façade. The existing building, as a substantial Victorian villa, dates from one of the key periods of significance and, despite the changes that have been made, makes a contribution to the character and significance of the FF HCA. I am satisfied that the existing building contributes to the collective heritage significance of the FF HCA and that the unsympathetic alterations to the front façade are not so overwhelming to the overall form and intactness of the building so as to make it detracting within the FF HCA.

The existing building can be successfully adapted and added to, to achieve a single dwelling, or a residential flat building, whilst maintaining its overall form and significant fabric in order to preserve its contribution to the collective heritage significance of the FF HCA. The existing building does not need to be restored, or demolished fabric reinstated, for it to continue to be contributory to the FF HCA.”

30. The finding in [25] was:

“I am satisfied by all of the evidence before me that the effect of the proposal to demolish the existing building would be detrimental to the identified heritage significance of the FF HCA, pursuant to s 5.10(4) of LEP 2022.”

31. In [23] and [24], the Commissioner addressed a submission C-Corp had made that the Council’s heritage contention proceeded on a misconceived basis, that the Council had wrongly classified the building as detracting in the DCP. The Commissioner set out C-Corp’s submission in [23]:

“The Applicant submitted that the Council’s heritage contention proceeds on a misconceived basis, that the Council has wrongly classified the building in the DCP 2016. Such contentions are not open to the Council to argue. The DCP 2016 provisions comprise an exhibited policy and so must be a focal point of consideration under s 4.15 of the EPA Act. To ignore the DCP provisions and to contend that the existing dwelling is neutral or of heritage significance is to apply a different test to that in the DCP 2016. This approach is contrary to the decision in Botany Bay City Council v Premier Customs Services Pty Limited (2009) 172 LGERA 338; [2009] NSWCA 226 at [32].”

32. The Commissioner rejected that submission in [24]:

“I do not accept that finding that this building was incorrectly classified as detracting in DCP 2016 amounts to “put[ting] aside the standard set by the DCP and applying [my] own standard of what is reasonable” (Botany Bay City Council v Premier Customs Services Pty Limited (2009) 172 LGERA 338; [2009] NSWCA 226 at p 346). I have carefully applied the terms of DCP 2016 in regard to the evidence of the heritage experts and concluded that the application of the definitions under DCP 2016 have been wrongly applied by the author of the cursory heritage study to this building. I have not ignored the DCP 2016 provisions, nor applied a different test to that in the DCP 2016. I have merely disregarded the individual assessment for this building.”

33. The Commissioner’s conclusion was in [26]:

“As the proposed demolition of the existing building is determinative of the appeal, it is not necessary to determine the Council’s remaining contentions.”

C-Corp’s argument that the Commissioner’s consideration of the DCP miscarried

34. C-Corp challenged the way in which the Commissioner considered these provisions of cl 5.10(4) of the LEP and Chapter E-1 of the DCP. In essence, C‑Corp contended that the Commissioner’s consideration of these provisions miscarried, in various ways, by the Commissioner not considering and applying the provisions of Chapter E-1 of the DCP with respect to detracting buildings. As has been explained, Chapter E-1 of the DCP regulates buildings in a HCA differently, dealing with heritage items and contributory buildings in one category and neutral and detracting buildings in another category. The building on the land proposed to be demolished by C-Corp was classified by the Federal Fyle HCA Character Statement as being a detracting building. That meant that the applicable provisions and controls in Chapter E-1 of the DCP were those for detracting buildings. However, C-Corp argued, the Commissioner did not consider and apply those provisions and controls for detracting buildings in her determination of the development application. The reason was that the Commissioner found that the classification in the Federal Fyle HCA Character Statement of the building as a detracting building was incorrect. That finding led to the Commissioner not applying the provisions for detracting buildings.

35. This non-application of these provisions for detracting buildings founded four of the grounds of appeal, grounds 1 to 4. Ground 1 was that the Commissioner erred in law by concluding that the classification in the Federal Fyle HCA Character Statement of the building as a detracting building was incorrect. C‑Corp argued that it was not open to the Commissioner to ask whether the classification of the building was correct or not in the determination of the development application. The Commissioner had to take the classification as it was made and apply the provisions of the DCP that depended on that classification.

36. C-Corp argued that by finding that the classification of the building for the purposes of the DCP was incorrect, the Commissioner asked and answered the wrong question, which is an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. This had the consequence that the Commissioner exceeded her jurisdiction because there was no statutory entitlement authorising the Commissioner to undertake that task.

37. Ground 2 was that the Commissioner erred in law in failing to make the DCP’s classification of the building as a detracting building a fundamental element or focal point for consideration in the determination of the development application. In this way, C-Corp argued, the Commissioner failed to consider the relevant matters of the classification of the building as a detracting building and the provisions of the DCP for detracting buildings.

38. Ground 3 was that the Commissioner erred in law in disregarding the identification and assessment of the building in the Federal Fyle HCA Character Statement as a “non-contributory” element. C-Corp argued that the Commissioner’s disregard of the individual assessment of the building in the Character Statement was legally impermissible and led to the Commissioner failing to consider a relevant matter.

39. Ground 4 was that the Commissioner erred in law in finding that the demolition of the existing building would be detrimental to the identified heritage significance of the HCA pursuant to s 5.10(4) of the LEP, in circumstances where the DCP classifies the building as a detracting building. C-Corp argued that the Commissioner’s consideration under cl 5.10(4) of the effect of the proposed development of the demolition of the building on the heritage significance of the Federal Fyle HCA needed to be informed by the Federal Fyle HCA Character Statement’s identification of the heritage significance of the HCA. That identification of the heritage significance of the Federal Fyle HCA included not only the “key character elements” but also the “non-contributory elements” of the HCA. One of the identified non-contributory elements was “recent or heavily altered houses with difficult to reverse uncharacteristic alterations”, of which the building at 5 Bruce Street was identified as an example. By disregarding the Character Statement’s identification of the building as a non-contributory element, C-Corp argued that the Commissioner’s consideration of the effect of the demolition of the building on the heritage significance of the Federal Fyle HCA miscarried.

40. Ground 5 identified a different error of law. Ground 5 was that the Commissioner erred in law in finding that the heritage study undertaken to identify the heritage significance of the Federal Fyle HCA in the Character Statement was “cursory”, as there was no evidence to support that finding.

The Council’s defence of the Commissioner’s consideration of the DCP

41. The Council responded to C-Corp’s grounds 1 to 4 challenging the Commissioner’s consideration of the provisions of cl 5.10(4) of the LEP and Chapter E-1 of the DCP, essentially on five bases.

42. First, the Commissioner did in fact consider the matters said by C-Corp to be relevant matters of the classification of the building as a detracting building and as a non-contributory element in the Federal Fyle HCA Character Statement, and the provisions of Chapter E-1 of the DCP for detracting buildings. The Commissioner referred to provisions of the DCP relating to heritage conservation areas and stated that she had “carefully applied the terms of” the DCP. The Commissioner’s disagreement with the classification of the building as a detracting building and as a non-contributory element in the Federal Fyle HCA Character Statement evidences consideration, not a failure of consideration, of those provisions.

43. Second, not every matter that might be identified as a relevant matter needed to be considered by the Commissioner as a fundamental element in, or a focal point of, the decision-making process in determining the development application. The Commissioner was entitled to determine the appropriate weight to be given to the matters which were required to be taken into account in determining the development application: Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276 at [21]‑[22] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40; and see also Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [178], [220], [228], [230], [231].

44. Third, the obligation in s 4.15(1)(a)(iii) of the EPA Act to consider the provisions of the DCP is not to be equated with an obligation to apply the provisions of the DCP. The Commissioner was not obliged to apply without departure the provisions of the DCP, including the statements in the Federal Fyle HCA Character Statement classifying the building as a detracting building and a non-contributory element. The Commissioner, having considered the provisions, could depart from the provisions in the exercise of her discretion to determine the development application. The Commissioner was entitled to disagree with, and disregard, the classification in the Federal Fyle HCA Character Statement of the building as a detracting building and a non-contributory element. In that circumstance, the Commissioner was entitled not to apply the provisions of Chapter E-1 of the DCP for detracting buildings in the determination of the development application.

45. Fourth, the Commissioner’s consideration of the matter in cl 5.10(4) of the LEP and finding that the effect of the demolition of the building would be detrimental to the heritage significance of the Federal Fyle HCA did not miscarry by reason of how the Commissioner considered the provisions of Chapter E-1 of the DCP. By s 5.10(4), the Commissioner was required to consider the effect of the demolition of the building on the heritage significance of the HCA. In that consideration, the Council submitted, the Commissioner was not obliged to construe the term “heritage significance” in cl 5.10(4) by reference to the identification of heritage significance in the Federal Fyle HCA Character Statement. The term “heritage significance” in cl 5.10(4) is defined in the Dictionary to the LEP as meaning “historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value”. The Council submitted the Commissioner was entitled to make her own assessment of the heritage significance of the Federal Fyle HCA. Whilst it was permissible for the Commissioner to have regard to the identification of the heritage significance of the Federal Fyle HCA in the Federal Fyle HCA Character Statement, the Commissioner was not obliged to apply that identification of the heritage significance without departure: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [46]-[50].

46. Fifth, the Commissioner’s finding for the purposes of cl 5.10(4) of the LEP that the effect of the demolition of the building would be detrimental to the heritage significance of the Federal Fyle HCA independently supported the Commissioner’s determination to refuse the development application. The finding and determination were not affected by the Commissioner’s consideration of the provisions of Chapter E-1 of the DCP.

47. The Council responded to ground 5 by submitting that the Commissioner’s use of the adjective “cursory” in describing the heritage study undertaken to identify the heritage significance of the Federal Fyle HCA in the Character Statement was a finding of fact. The heritage study was referred to in the Heritage Impact Statement which was in evidence before the Commissioner. It was open to the Commissioner to evaluate the adequacy of the heritage study. No error on a question of law is revealed by the Commissioner’s evaluation of the heritage study as cursory.

The Commissioner did not err on questions of law

48. C-Corp’s grounds of appeal 1 to 4 are founded on the Commissioner’s finding that the assessments in the Federal Fyle HCA Character Statement that the building is a detracting building and a non-contributory element in the HCA were incorrect. C-Corp argued that it was legally impermissible for the Commissioner to put aside those assessments of the building in the Character Statement and apply her own assessment instead. To do so was to ask the wrong question and fail to consider a relevant matter.

49. C-Corp’s argument, however, mischaracterises what the Commissioner did. True it is that the Commissioner found the classification of the building in the Federal Fyle HCA Character Statement as a detracting building was incorrect. The Commissioner’s finding was, however, correct. As the Commissioner found at [20], and it was not in dispute, the building dates from a construction period within the Key Period of Significance for the HCA. The building was constructed in 1885, within the Key Period of Significance for the HCA of 1879 to 1940s. The definition of a detracting building is a building “from a construction period which falls outside the Key Period of Significance for the HCA…”. As the building is not from a construction period which falls outside the Key Period of Significance for the HCA, but instead falls within the Key Period of Significance for the HCA, the building does not satisfy the definition of a detracting building.

50. Although the Commissioner found that the classification of the building as a detracting building was incorrect, the Commissioner did not re-classify the building for the purposes of the Federal Fyle HCA Character Statement or application of the provisions of Parts 3 and 8 of Chapter E-1 of the DCP. The Commissioner did not re-classify the building as a Contributory 1 or Contributory 2 building and apply the provisions of Part 3 and 8 of Chapter E-1 of the DCP for contributory buildings. The Commissioner did not, as C-Corp argued by reference to Botany City Council v Premier Customs Services Pty Ltd at [32], “put aside the standard set by the DCP and applied [her] own standard of what is reasonable”.

51. Rather, what the Commissioner did once she found that the classification of the building as a detracting building was incorrect, was to depart from the provisions of Parts 3 and 8 of Chapter E-1 of the DCP for detracting buildings. Those provisions for detracting buildings could not sensibly be applied to a building that does not meet the definition of a detracting building. Those provisions could not provide guidance for the Commissioner’s consideration under cl 5.10(4) of the LEP of the effect of the proposed demolition of the building on the heritage significance of the Federal Fyle HCA. Application of those provisions would make the consideration under cl 5.10(4) counter-factual – it would force consideration of the effect on the heritage significance of the HCA of demolition of a building that, although classified as detracting, is not in fact detracting. The demolition of a detracting building might be viewed as having little or no adverse effect, indeed it might have a beneficial effect, on the heritage significance of the HCA. But the demolition of a building that is not in fact detracting, but might be contributory or at least neutral, might have an adverse effect on the heritage significance of the HCA. The point is that the consideration required by cl 5.10(4) of the LEP of the effect of the proposed development on the heritage significance of the HCA cannot sensibly be undertaken on an incorrect factual basis, but needs instead to be undertaken on a correct factual basis.

52. This is what the Commissioner did. And that is what the Commissioner correctly said she was doing in [24] of the judgment. Once this is appreciated, the Commissioner can be seen neither to have asked and answered the wrong question of whether the classification of the building was incorrect nor to have failed to consider a relevant matter of the classification of the building as detracting. Grounds 1 and 2 are rejected.

53. Similarly, true it is that the Commissioner found to be incorrect the assessment in the Federal Fyle HCA Character Statement that the building was an example of the non-contributory element of “recent or heavily altered houses with difficult to reverse uncharacteristic alterations” (at [20]). That finding, however, was open to the Commissioner to make on the evidence before the court. The Commissioner’s finding was specific to the building and did not challenge the identification in the Character Statement of non-contributory elements of the HCA. The Character Statement identified six categories of non-contributory elements, the first of which was “recent or heavily altered houses with difficult to reverse uncharacteristic alterations”. The Commissioner’s finding did not set aside that identification of that non-contributory element and substitute another standard. The Commissioner simply disagreed with the assessment that the building at 5 Bruce Street was an “example” of this identified non-contributory element.

54. The Commissioner’s consideration under cl 5.10(4) of the LEP of the effect of the demolition of the building on the heritage significance of the Federal Fyle HCA was informed by her finding that the building was not in fact an example of that non-contributory element. Again, once this is appreciated, the Commissioner can be seen neither to have asked and answered the wrong question of whether the assessment in this Character Statement that the building was an example of the non-contributory element of “recent or heavily altered houses with difficult to reverse uncharacteristic alterations” was incorrect nor to have failed to consider a relevant matter concerning that assessment in the Character Statement. Ground 3 is rejected.

55. Ground 4 is consequential on grounds 1 to 3. C-Corp argued that the Commissioner’s failure of consideration of the classification of the building as a detracting building and as a non-contributory element caused the Commissioner’s consideration of cl 5.10(4) of the LEP to miscarry. As I have found that the Commissioner did not err on a question of law in her consideration of the classification of the building as a detracting building and a non-conforming element, the Commissioner’s consideration under cl 5.10(4) could not consequentially miscarry.

56. Moreover, although under cl 5.10(4) the Commissioner, in considering the effect of the demolition of the building on the heritage significance of the Federal Fyle HCA, could have regard to the Federal Fyle HCA Character Statement, the Commissioner was not bound to apply the assessment of the building in that Character Statement but could instead depart from that assessment. To depart from that assessment of the building was not to substitute the Commissioner’s own evaluation of the heritage significance of the Federal Fyle HCA for that identified in the Federal Fyle HCA Character Statement. Rather, it was simply an application of the Commissioner’s assessment of the building as not being a detracting building or an example of a non-contributory element in consideration under cl 5.10(4) of the effect of demolition of the building on the heritage significance of the Federal Fyle HCA. This is what the Commissioner said she was doing in [24]. For these reasons, Ground 4 is rejected.

57. Ground 5 is baseless. Any error in using the adjective “cursory” to describe the heritage study that informed the classification of the building in the Federal Fyle HCA Character Statement as a detracting building and a non-contributory element, is not an error on a question of law. There was some evidence for the Commissioner’s finding that the heritage study was cursory. The Heritage Impact Statement, which was in evidence, referred to the heritage study that was undertaken. Mr Moore gave evidence that the building was not properly assessed, as the Commissioner found in [20]. In any event, the adjectival description of the heritage study was not material to the Commissioner’s reasoning or conclusion that the effect of the demolition of the building would be detrimental to the heritage significance of the Federal Fyle HCA. Ground 5 is rejected.

Conclusion and orders

58. C-Corp has not established any of its grounds of appeal. The appeal should be dismissed with costs.

59. The Court orders:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

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Amendments

26 June 2024 - Replaced "give" with "five" in paragraph [1], third sentence.

Decision last updated: 26 June 2024