Chisholm v Pittwater Council

[2000] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION:

Chisholm v Pittwater Council and Anor [2000] NSWLEC 143

PARTIES:

APPLICANT:
Samuel Chisholm

FIRST RESPONDENT:
Pittwater Council

SECOND RESPONDENT:
Willeroon Pty Ltd

FILE NUMBER(S):

40046 of 2000

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- whether decision manifestly unreasonable - whether irrelevant matters taken into account - procedural fairness - jurisdictional fact/precondition

LEGISLATION CITED:

Interpretation Act 1987 s 8
Pittwater Local Environmental Plan 1993 cl 32

CASES CITED:

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
Clifford and Anor v Wyong Shire Council (1996) 89 LGERA 240;
Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 106 LGERA 419;
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24;
Nashville Investments Pty Ltd v Gull Petroleum (WA) Pty Ltd and Ors (1998) 103 LGERA 1;
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355;
Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 102 LGERA 52

DATES OF HEARING:

29/05/2000, 30/05/2000, 31/05/2000, 01/06/2000, 02/06/2000

DATE OF JUDGMENT:

07/11/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley

FIRST RESPONDENT:
Mr R P Lancaster (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

SECOND RESPONDENT:
Mr P D McClellan QC with Mr A E Galasso (Barrister)
SOLICITORS:
Deacons Graham & James

JUDGMENT:

IN THE LAND AND Matter No. 40046 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 11 July, 2000

Samuel Chisholm
Applicant

v
Pittwater Council
First Respondent

Willeroon Pty Ltd

Second Respondent

REASONS FOR JUDGMENT


1. The building at No 35 Ocean Road, Palm Beach, known as “Willeroon”, is generally described as reminiscent of the “Californian Bungalow” style of dwelling. Built in 1923 by Clive Pemberton Curlewis, it has been the subject of a number of studies and is characterised by deep elevated verandahs, major gable forms in timber, sweeping roof forms, heavy masonry pylons or piers and an architectural focus on outdoor living. Willeroon was first listed as a building of heritage significance by the National Trust in 1979.

2. The second respondent, Willeroon Pty Ltd, is the owner of Willeroon. On 3 December 1998 the second respondent lodged a development application with the first respondent seeking consent to demolish the existing building and construct a three storey dwelling with associated carparking and a separate cabana structure closer to the Ocean Street frontage of the property. The application was last amended in September 1999.

3. On 13 December 1999 the council resolved to approve the development application.

4. The subject property is within zone 2(a) Residential “A” and 6(a) Existing Recreation “A” under Pittwater LEP 1993 (“the LEP”).

5. LEP Amendment No. 32, proclaimed in June 1999, updates the heritage provisions of the LEP and protects the heritage significance of properties fronting Ocean Road between Ocean Place and Hordern Park, Palm Beach including the subject property, by creating a heritage conservation area.

6. Clause 32 of the LEP is as follows:-

(1) The following development may be carried out only with development consent:
(a) demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area; or
(b) …
(c) …
(d) …
(e) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area; or
(f) …


(2) Development consent is not required by this clause if the council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or heritage conservation area.

(3) When determining a development application required by this clause, the council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area.

(4) The council must not grant consent to a development application required by this clause until it has considered a conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area.

(5) In this clause, “conservation plan” means a document establishing the heritage significance of a heritage item or a heritage conservation area and identifying conservation policies and management mechanisms that are appropriate to enable that significance to be retained.


7. In these class 4 proceedings the applicant seeks declarations that the first respondent’s resolution of 13 December 1999, granting development consent to demolish the existing building and construct a new three storey dwelling at 35 Ocean Road, Palm Beach is invalid and of no effect and further that the development consent itself is invalid and of no effect. The applicant further seeks an order restraining the second respondent from undertaking demolition works on the subject property.

8. The applicant acquired the adjoining premises, No 36 Ocean Road, in 1995.

The issues

9. The issues are:-

(1) Whether development consent was required for the demolition and subsequent erection of a building.
(2) Whether the council’s determination to grant development consent was manifestly unreasonable.
(3) Whether in granting development consent the council failed to consider a “conservation plan” as required by cl 32(4) of the LEP.
(4) Whether the council failed to consider relevant matters required by cl 32(3) of the LEP.
(5) Whether the council took into account irrelevant matters in its determination of the development application.
(6) Whether the council denied objectors to the development application procedural fairness.


10. It is common ground that the development consent referred to in (1) is required.

History of consideration of the heritage significance of Willeroon

11. Willeroon has been identified as or discussed in the context of an item having heritage significance from at least 1989 when it was included in the inventory of heritage items in the Barrenjoey Peninsula and Pittwater Heritage Study prepared for the council by McDonald McPhee Pty Ltd. It had been listed by the National Trust for the ten years before that.

12. Competing submissions have been made to council in the meantime by the owners of Willeroon and the applicant contesting whether the property should be formally listed by the council.

13. In all, the Court has been presented with 16 reports by consultants or council officers which relate either to the significance of the Ocean Road Heritage Conservation Area or Willeroon itself. It has been necessary to read all of these reports.

14. The ongoing debate has concerned the issue of whether Willeroon should be separately listed, included in the conservation area, or even retained at all.

15. The opinions expressed are across the spectrum, ranging between the property retaining its current unlisted status, through including it in the conservation area, to a recommendation for separate listing.

16. The reports by private consultants generally reflect the interests of the person retaining them, except in the case of the council where the consultants have been retained to provide an independent heritage and strategic planning assessment.

17. Brian McDonald and Associates prepared an overview of the various heritage reports on 7 November 1997. The author states that he does not attempt to produce yet another heritage report and does not make a detailed dissection of the previous reports. The review focuses on key points and attempts to summarise the issues relevant to the future development, use and management of No 35 Ocean Road. Mr McDonald concludes that Willeroon does not possess heritage significance to a degree which warrants listing as a heritage item. Furthermore, he does not appear to support the creation of a heritage conservation area for the Ocean Road precinct. He concludes as follows:-

A carefully sited and thoughtful contextually designed new building on the site of 35 Ocean Road could capture, in a contemporary interpretation, the Palm Beach holiday house character and respect the amenity of neighbouring owners. In this way the acknowledged visual relationship of buildings to the attractive landscape setting can be respected without detriment to the public interest.


18. In a commentary on a report prepared by Richard Lamb and Associates on behalf of the present applicant on 18 October 1999 Mr McDonald, at the request of the owner of Willeroon, disputed that the report by Richard Lamb and Associates was relevant to heritage matters, a view supported by Darrel Conybeare in a report also prepared in October 1999.

19. Although it was not the first time demolition of Willeroon had been proposed, the current development application was lodged in December 1998. The assessment of the application was deferred at the request of the NSW Heritage Office which at that time was considering whether to provide an interim heritage order for the property and also whether to include the conservation area within the state register. Ultimately the interim heritage order was not granted but the council was advised to include the building in the proposed conservation area under the LEP.

20. In a report to the Environment and Planning Committee of council on 27 September 1999 the Development Unit Chairman, Regina Miller, recommended refusal of the development application as the proposed demolition and erection of a new building failed to satisfy council’s requirements in terms of heritage, height, bulk and scale and setbacks.

21. The heritage significance of Willeroon is discussed in further detail in a report prepared for the Development Unit meeting on 2 December 1999. This report notes that there are clearly differing views on the heritage and conservation value of Willeroon and that the council needs to consider that issue having regard to the reports made available to it and the current report, but placing particular weight on an independent study by Tanner and Associates in July 1997 and the recommendation of the heritage office.

22. The report also concludes that the proposed demolition and erection of a new building fails to satisfy council’s requirements in terms of heritage, height, bulk and scale and setbacks and recommends refusal of the development application.

23. The report by Tanner and Associates Pty Ltd was issued to council in July 1997. It recommended that following research for the study and the assessment of significance for the precinct, Pittwater Council should either:-

_ initiate a Development Control Plan for the area; or
_ define it as a Conservation Area with appropriate controls, preferably for inclusion in the LEP.


24. The report also recommended a preference to retaining a number of buildings including the subject property, with adaptive reuse possibilities. A Willeroon development proposal then before the council was considered by Tanner to be unsuitable for “one of the most distinctive Palm Beach bungalows” .

25. Setting aside whether or not it is open for the Court to determine if there was a conservation plan before the council when it determined the development application for the moment, both the council and the second respondent rely upon the mass of material within the various reports available to council, in particular the Tanner report and the reports of council officers, to demonstrate that documents comprising the elements of the definition of a conservation plan as that term is defined in cl 32(5) of the LEP were available to and considered by the council as required by cl 32(4).

Manifest unreasonableness

26. The applicant relies upon established authority which says a decision is manifestly unreasonable if the decision maker acted on an erroneous view of the applicable law or made a decision so devoid of any plausible justification that no reasonable council could have made it; Nashville Investments Pty Ltd v Gull Petroleum (WA) Pty Ltd and Ors (1998) 103 LGERA 1 at 10 - 11; Clifford and Anor v Wyong Shire Council (1996) 89 LGERA 240 at 249 - 251; Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294; Corporation of the City of Enfield v Development Assessment Commissionand Anor (2000) 106 LGERA 419.

27. The respondents remind the Court of the stringency of the test for error of law constituted by “manifest unreasonableness” and that it is an invalid exercise of the power of judicial review on the ground of unreasonableness for the Court to substitute its own view for the council’s decision: Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltdand Ors (1986) 162 CLR 24 at 40 - 42.

28. Mr Hemmings QC, in his final submission on behalf of the applicant, reiterates the conclusions reached by the consultants retained by his client that Willeroon is a significant heritage item, if not the most significant at that location.

29. The evidence as a whole, however, discloses a significant divergence of views held by experts who have given consideration to the significance of Willeroon as a heritage item. It is nevertheless not to the point that the Court should be persuaded that the comments by experts relied upon by the applicant are more persuasive than those relied upon by the council when the decision to approve the development application was made.

30. The report of the Development Unit when making its recommendation that the application be refused specifically identified the plethora of material available from the numerous reports made available to council between 1996 and 1999 and noted that they contained competing expert and other opinions in respect of the merits of the development application. The report contemplated that the council may determine that it is appropriate to demolish Willeroon and made recommendations accordingly.

31. This is not a case where the evidence is all one way. The council was required to weigh the submissions, advice, opinions and reports available to it and then to make its own decision. It was not bound to give any greater credence to the views expressed on behalf of the applicant in these proceedings over and above those submitted on behalf of the owner of Willeroon or its own officers.

32. Furthermore, the council had for a number of years been considering the proposal to demolish Willeroon and to construct a new dwelling in its place, in the context of the heritage conservation issues arising in relation to Willeroon itself and the area generally.

33. It is not necessary to trace and analyse all the detail of the matters upon the which the applicant relies to support his case that the decision of the council was so unreasonable that no reasonable council would have made the decision. To do so would involve the Court in an evaluation and assessment which the High Court has said should not be undertaken upon judicial review of the exercise of an administrative power. In a general way, it is sufficient to ask whether the decision made was open to the council.

34. After taking into account the reported material available to council it cannot be said that the decision to approve the development application was not open to the council notwithstanding the claims that Willeroon was a significant heritage item.

35. However, there are a number of further matters which require consideration as a consequence of the way in which the applicant has framed its case.

36. The council asserts that the question of whether there was a relevant conservation plan was never addressed or put to council and accordingly a condition precedent to the determination to grant consent to the development application was not satisfied.

37. It is said that because council did not have or consider a conservation plan relevant to the demolition of Willeroon which satisfied the criteria set in cl 32(5) of the LEP, the decision to approve the development application was on that ground alone unreasonable. Further, having declined to accept expert advice to list Willeroon as a heritage item for the reason that it was within a conservation area, council nevertheless approved its demolition without first determining the extent that the demolition of Willeroon and erection of the new dwelling will adversely affect the heritage significance of the subject property or the heritage conservation area as required by cl 32(3). Indeed, it is claimed that the council acted on an erroneous view of the applicable law by failing to appreciate that cl 32 as amended applied to the application.

38. It is appropriate for the issues relating to the application of cl 32 of the LEP to be considered separately.

39. The applicant also raises two further separate issues to support the claim of manifest unreasonableness. Firstly, that the council took into account irrelevant matters in the process of making its decision. Secondly, that it denied procedural fairness to those persons who had objected to the proposal. These issues will also be dealt with separately.

The application of cl 32 of Pittwater LEP 1993 (Amendment No. 32)

40. The applicant says that cl 32(3) and (4) are provisions by way of prohibition and that the council had a duty to comply with the provisions of cl 32 prior to embarking upon a consideration of the merits of the application.

41. Mr Hemmings relies upon the undisputed fact that nowhere in the documents or any of the other material before council is there direct or specific reference to a heritage conservation plan.

42. The written report to the Development Unit meeting on 2 December 1999, included with the agenda for the Environment and Planning Committee meeting on Monday 13 December 1999, states that copies of LEP Amendment No. 32 and the relevant development control plans “have been made available to all Councillors and will be available for further consideration at the meeting on 13 December 1999” . Councillor Phelps, who gave evidence on behalf of the first respondent, was not asked whether she had access to the amended LEP at or prior to the meeting and there is no evidence to the contrary. The applicant claims that a mere reference to LEP Amendment No. 32 and its availability is not enough.

43. The debate between the applicant and the second respondent has proceeded without any real contest between those parties that the council was acting pursuant to cl 32 when it determined the development application.

44. The first respondent, however, submits that the strong inference from the material before council including, in particular, the course of debate in the council chamber, is that the council held an opinion that the proposed development would not adversely affect the heritage significance of the heritage conservation area. Therefore, it argues that by the operation of cl 32(2) development consent was not required. In consequence, as a matter of construction, cl 32(3), (4) and (5) did not need to be addressed or satisfied by the council when granting approval.

45. The council notes that development consent was otherwise required by operation of cl 29 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.

46. It is significant that when the council officers prepared the reports in September and December 1999 a draft Notice to Applicants of Determination of Development Application was attached. Reasons were provided for refusal of the application. These included three reasons which stated the proposed development is inconsistent with the objective of LEP Amendment No. 32 relating to the protection of heritage significance of properties with frontage to Ocean Road, the heritage significance of conservation areas and their settings and the retention of the character of the area.

47. The primary issues which took up the major sections of the discussion in the reports related to the heritage significance of Willeroon, the impact on the Ocean Road Conservation Area, landscape heritage and the domination of the streetscape by the heritage character of the area.

48. In the Court’s view, the depth of consideration of heritage issues by the council and the nature of the material before it raises the strong inference that the council did have regard to the provisions of cl 32 with the understanding that there could be an adverse affect on the heritage significance of the heritage conservation area.

49. Despite the curious amendment made to the LEP on 4 June 1999 whereby the Ocean Road Conservation Area was included at the end of Sch 9 as a heritage item, the argument proceeded on the basis that the relevant reference in cl 32 was the heritage significance of the heritage conservation area rather than the heritage significance of a heritage item. It is not necessary to finally determine this question in these proceedings as for present purposes it is in practical terms a distinction without a difference.

50. When it is understood that the original application to demolish Willeroon and to erect a new dwelling on the subject land acted as a catalyst for council to seek advice on the heritage significance of the Ocean Road precinct, it is difficult to see from what followed, starting with the Tanner report, how council could not have complied with its obligations under cl 32(3) to take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area.

51. On 8 December 1999 the council Director - Environmental Planning and Community issued a specific memorandum addressed to all councillors as follows:-


A report on the possible heritage listing of Willeroon and other sites in Palm Beach is to be considered next Monday, 13 ^th December 1999. Also on that agenda is a report on a Development Application to demolish Willeroon and erect a new building.

You would have received an envelope with all of the submissions received in relation to the Development Application, the consultants reports relating to the heritage listing issues and other relevant documentation last Thursday the 2 ^nd December, 1999. I bring these matters to your attention once again for the purposes of being in the best position to consider the matters at the Council meeting next Monday night.


52. Prior to considering the development application and after hearing addresses from representatives of the second respondent and the applicant, the council resolved not to prepare a draft LEP to list as heritage items certain nominated buildings in Ocean Road, including Willeroon, noting that the buildings are within a heritage conservation area identified within the LEP.

53. Again it is not possible to uphold the applicant’s submission that the council was unaware of, or did not properly consider, the heritage provisions of the LEP.

54. The Court agrees with the first respondent that the evidence is consistent only with the inference that the council took into consideration the extent to which the “proposed development” would affect the heritage significance of the heritage conservation area to an extraordinary level of detail.

Whether there was a relevant conservation plan

55. Both respondents submit that on a proper construction of cl 32(4) the existence or otherwise of a “conservation plan” is not a matter which is concerned with a jurisdictional fact and accordingly it was a matter for the council in the course of its consideration of the development application. They both rely on the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 102 LGERA 52 where the Chief Justice delivered a judgment with which the President and Meagher JA agreed.

56. In the context of the heritage conservation area the fundamental policy objective of cl 32 is the protection of the heritage conservation area by ensuring that any adverse impact as a consequence of development, in particular the demolition or erection of a building within the heritage conservation area, is assessed by reference to the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area.

57. The express provisions of cl 32 set apart the consideration of a proposal for development within a heritage conservation area from the consideration of a proposal for development in any other area. This much is made clear by the stated aims set out specifically in cl 2 of LEP Amendment No. 32 and the language of cl 32 itself.

58. In Timbarra at 61 the Chief Justice identified “objectivity” and “essentiality” as two interrelated elements for determining whether the legislature intends that the absence of a fact will invalidate the action taken under the statute. His Honour referred to the test explained in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 where McHugh, Gummow, Kirby and Hayne JJ said that a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

59. Clause 32(4) of the amending LEP prohibited development specified in subcl (1) within the heritage conservation area unless the council has “considered a conservation plan that assesses the impact of the proposal on the heritage significance … of the heritage conservation area” and that the “conservation plan” meets the definition in subcl (5). Not only must the conservation plan satisfy the meaning attributed by subcl (5) it must assess “the impact of the proposal” as required by subcl (4). The consideration was a precondition to consent. That precondition must be satisfied before the power of the council to exercise its discretion in relation to the merits is enlivened ( Corporation of the City of Enfield v Development Assessment Commission and Anor at 430).

60. The applicant’s case starts with the proposition that there was no document within the meaning of a conservation plan outlined in cl 32(5).

61. Both respondents argue that although there was no specific document bearing the title of a conservation plan or purporting to be made specifically pursuant to cl 32(5), nevertheless, the documents that were before council, including those which had been considered by it on previous occasions, relevantly comprised a conservation plan.

62. According to Mr McClellan QC, who appears for the second respondent, cl 32(4) is in practical terms calling for an assessment in the light of a conservation plan defined by cl 32(5). Applying a purposive analysis to the question whether requirements of subcll (4) and (5) have been complied with, he says it is necessary to show compliance only to the extent sufficient to allow the council to make an informed decision. In order to do that the Court must look at the entire history rather than confining the examination to the facts of what occurred at the council meeting when the decision was made.

63. The history of the documentation commences with the Barrenjoey Peninsula and Pittwater Heritage Study published in January 1989 and includes subsequent reports on the heritage significance of Willeroon prepared on behalf of the second respondent and the present applicant leading up to the lodgment of the development application in December 1998.

64. It is important to remember that the conservation area was not created until LEP Amendment No. 32 was made on 4 June 1999.

65. After June 1999 further reports were made available to the council as follows:-

1. Commentary on report prepared by Richard Lamb and Associates Consulting for the present applicant by Brian McDonald and Associates.
2. A review of the Lamb report prepared for Willeroon Pty Ltd by Darrel Conybeare.
3. A report to the council’s Development Unit Meeting on 9 September 1999.
4. A report to council’s Environment and Planning Committee meeting of 27 September 1999 in relation to the determination of the subject development application.
5. A report to council’s Environment and Planning Committee meeting of 27 September 1999 in relation to a consideration of heritage listing of properties in Ocean Road, Palm Beach.
6. A report to council’s Environment and Planning Committee meeting of 13 December 1999.


66. On behalf of the council Mr Lancaster submits that the obligation imposed upon the council by cl 32(4) was to consider a conservation plan as defined and that the Tanner report, in itself, constitutes such a conservation plan. It was then a matter for the council to take that plan into consideration, which he says it clearly did. Further, had the intention of cl 32(4) been to require the consideration of a conservation plan addressing the specific application, the draftsperson would have said so by the use of a more specific form of words. The council had already considered these matters in detail at its meeting of 24 November 1997 at which time the council resolved to adopt its draft LEP by Amendment No. 32 and resolved “ that all future applications are to have regard to the heritage assessment prepared by Tanner & Associates where they remain applicable and the rights of the individual to develop their own property is to be taken into account” .

67. Finally, it is said on behalf of the council that it had available to it a wealth of other reports which, when read together, constitute a conservation plan. According to Mr Lancaster some of these individual reports, whether viewed separately or collectively, constitute a conservation plan. The fact that they were not incorporated in one single document at the time the development application was considered does not matter. He relies on s 8 of the Interpretation Act 1987 to construe the use of the word “document” in the singular form to include a reference to a number of documents.

68. Mr McClellan, reiterating on behalf of the second respondent that cl 32(4) is concerned only with the information to which the consent authority is to have regard in the determination of a development application, says that at the time of the consideration of the proposal before it the council was, through a number of documents, in possession of a conservation plan establishing the heritage significance of the conservation area and identifying conservation policies and management mechanisms appropriate to enable the significance to be retained. Mr McClellan also says that a comparison of cl 34(4) and cl 34(5) demonstrates clearly that the draftsperson contemplated the existence of more than a single document at the time of the relevant decision. Accordingly, all the elements of the definition of a conservation plan were clearly before the council with the result that the objective of the planning instrument was satisfied, thereby enabling the council to make a fully informed decision.

69. Prior to determining the development application at its meeting on 13 December 1999, the council considered a motion to list the buildings in Ocean Road known as Kalua, Willeroon and the Cabbage Tree Club as heritage items. It resolved not to do so while noting that the buildings are within the heritage conservation area identified in the LEP. A separate report was presented to the council in that regard. It recommended exhibition of an amendment to the LEP to include the above-mentioned properties as heritage items in appendix 3. Attached to the report was advice that the Heritage Council State Register Committee resolved as follows:-

1. notes that Willeroon, 35 Ocean Road Palm Beach is an important contributing element in the Ocean Road Conservation Area, and listed in Local Environmental Plan 1993 (Amendment No 32) heritage conservation;
2. rescinds its resolution 15 April 1999, which recommended to the Minister the making of an IHO over Willeroon; and
3. notes it is a heritage item of local significance and should be listed as an individual item in the heritage schedule of Pittwater LEP.


70. Both reports before council on 13 December 1999 referred to the history of the consideration of heritage matters in relation to the conservation area and in respect of Willeroon itself. Specific reference was made to the various reports held by council in respect of the heritage and conservation values of Willeroon. The report in respect of the development application particularly noted that the council was in possession of a number of heritage advices regarding the significance of Willeroon as a heritage item and as a contributor to the Ocean Road Heritage Conservation Area. Particular reference was made in this context to the Tanner and Associates report of 1997. Extracts from the Tanner and Associates heritage assessment were included with the September and December 1999 reports to council.

71. The report on the development application specifically contemplated that it might be determined that in council’s opinion it was appropriate to demolish Willeroon in which case “it would then at least be critical to ensure that the proposed dwelling is an appropriate contributor to the Ocean Road Conservation Area” . The author of the report noted that having regard to the available information and the applicable DCPs, it was considered that the style of the proposed dwelling was acceptable subject to one reservation in relation to the number of storeys.

72. It is apparent therefore that the impact of the proposal on the Ocean Road Conservation Area was specifically the subject of consideration in the September and December reports.

73. The Court rejects any suggestion that a conservation plan must be specifically prepared to assess each particular proposal that might come before council from time to time. For example, it would be feasible for there to be a document meeting the description of a conservation plan that assesses the impact of a proposal on the heritage significance of a conservation area where the prospect of the proposal was expressly contemplated at an earlier time, as the facts show in this case.

74. As far back as November 1997 the council resolved that all future applications are to have regard to the heritage assessment prepared by Tanner and Associates.

75. The making of the LEP provisions in respect of the heritage conservation area was an evolving process, particularly during the period after the final development application for the demolition of Willeroon and the construction of a new dwelling was received. For example, at its meeting on 7 June 1999 the council resolved that consideration of the development application be deferred pending the Heritage Council’s consideration of submissions and its decision on the proposed conservation area and an interim heritage order.

76. The impact of the proposal on the heritage conservation area, the conservation policies associated with the conservation area, and the management mechanisms appropriate to enable the significance of the conservation area to be retained were the subject of repeated reports to and consideration by the council. This was not only in the period immediately prior to its determination on 13 December 1999, but extended over the previous 12 months and then back to the Tanner report in 1997.

77. Although Councillor Phelps stated during debate that the heritage issue had been resolved by the resolution already passed to reject the proposed amendment to the LEP in order to include Willeroon as a heritage item, that cannot be taken to infer that she thereafter expressly excluded cl 32 from her consideration. Furthermore, even if Councillor Phelps did misunderstand the legal position, it does not follow that any error on her part can be attributed to the consideration of the other councillors who had access to the whole of the material.

78. The development consent for the new dwelling contains the following condition:-

A photographic record of the interior and exterior of Willeroon is to be completed. The “Guidelines for Photographic Recording of Heritage Sites, Buildings & Structures”, prepared by the NSW Heritage Office is to be followed in completing the photographic record. This is to be submitted to Council for approval prior to demolition.


79. The Court cannot be satisfied that the councillors attending the meeting on 13 December 1999 misunderstood what the impact of the proposal to demolish Willeroon and to erect a new dwelling would be on the heritage significance of the heritage conservation area. That heritage significance had been clearly identified over the period of years leading up to the meeting on 13 December 1999 and restated specifically in the up-to-date reports before council at that meeting. The council officer identified the conservation policies and management mechanisms that were appropriate in terms of the new dwelling in order to enable the significance of the heritage conservation area to be retained. The failure to incorporate all of the material that the council had before it and available for its consideration into one document does not, in my view, necessarily result in invalidity. The individual councillors and hence the council itself had before them sufficient information to satisfy the purpose of the requirements of cl 32 and in particular cl 32(4) and cl 32(5). Although the elements of the aim of the clause were not brought together in one document, those elements nevertheless were before the council and therefore the purpose of the legislation in that respect was satisfied.

Procedural fairness and taking into account irrelevant matters

80. The applicant’s case is founded on two allegations.

81. Firstly, that council members had available to them confidential information and that objectors had no opportunity to consider that information or to make submissions in relation thereto.

82. Secondly, it is claimed that objectors were not given copies of alternative motions drafted in advance by council officers at the request of individual councillors and further that requests for adjournment of the meeting to allow councillors to consider and understand the motions were denied. There was also a request by councillors for an adjournment to enable the public to be made aware of and make representations following the erection of height poles over the weekend prior to the meeting.

83. The legislation does not provide that any person in the category of the present applicant, or other objectors, be afforded an opportunity to be heard in relation to the determination of a development application except in special circumstances, such as designated development, which do not arise in this case.

84. Nevertheless, the council did notify the present applicant and other members of the public that the development application had been received. There is no evidence that an invitation to make submissions amounted to an opportunity to address each and every procedural step taken by the council. Nevertheless, the applicant and others were given an extended opportunity to make submissions in writing and orally at the council’s meeting.

85. Originally, the confidential information was particularised as a statutory declaration containing allegations against the present applicant. The only councillor to give evidence told the Court that when she referred to confidential information during debate it concerned a memorandum from the Director - Environment Planning and Community containing legal advice received from the council’s solicitors. The councillor denied any knowledge of the contents of the statutory declaration referred to. In any event, the applicant through his solicitor responded to it in writing after being given an opportunity to consider its contents prior to the meeting.

86. The Court is not satisfied that anything contained in the statutory declaration played any material part in the council’s decision. There is no support for any suggestion that prejudice was displayed against the present applicant and there is no basis for a claim that the council acted on any misunderstanding likely to affect its decision. Even if the contents of the statutory declaration did fall within the such a category the party affected, namely Mr Chisholm, had a chance to deal with the subject matter of the remark and this opportunity was taken up by his solicitor.

87. There is no evidence that the council took into account the information in the statutory declaration or indeed regarded it as relevant in any way. Furthermore, there was never any reasonable expectation raised that members of the public would be made aware of the nature and content of any documents in that category and thereby given the opportunity to make representations in regard thereto.

88. The applicant’s representative and others representing the interests of objectors, including heritage consultants, were granted two minutes each to address the council meeting on 13 December 1999 before the resolution proposing the heritage listing of the properties in Ocean Road Palm Beach was put to the vote.

89. Again, the same cross section of persons, together with others, were granted three minutes each to address the meeting on the matter of determination of the development application.

90. Even if the opportunity to directly address the meeting had not been afforded, it would be arguable that those who wished to oppose the development application had been given extensive, almost unlimited, opportunities to put their views before council and they did so both in person and through their expert consultants.

91. The Court is not persuaded that there has been any breach of an implied requirement for procedural fairness, even in the extended sense alleged by the applicant.

92. The Court rejects the applicant’s claim that there was a denial of procedural fairness in any respect or that the council took into account any irrelevant matter in the consideration of the application and making its decision.

Discretion

93. The council has given long, serious and earnest consideration to the proposal over an extended period of time. The issues have been canvassed in detail by a large number of experts and all interested parties have been given the opportunity to make detailed submissions. It is difficult to see what further material could be placed before council in a relevant context.

94. The purpose and aim of the LEP has been clearly recognised, canvassed and considered. Even if the applicant had persuaded the Court that in some respect the council had acted otherwise than in accordance with the law this is a case where, in the exercise of its discretion, the Court would have been reluctant to make any orders that would have the result of depriving the second respondent of the benefit of the development consent it obtained on 13 December 1999.

95. The council in effect carried out the duties and obligations imposed upon it by the legislation.

96. If it had become necessary the Court would have exercised its discretion not to make any orders.

Conclusion

97. The applicant has failed to make out any aspect of his case and it follows therefore that the application will be dismissed.

98. The question of costs has not been argued. Although the Court would normally exercise its discretion to make an order for costs in favour of the two respondents as the successful parties, it is preferable that the question of costs be reserved until all parties have had the opportunity to consider the above reasons.

Orders

99. The formal orders of the Court are:-


1. The application is dismissed.

2. Costs reserved.

3. The exhibits may be returned.