F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) - [2007] NSWLEC 537

No judgment structure available for this case.

Reported Decision: (2008) 158 LGERA 250

Land and Environment Court

of New South Wales

CITATION: F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
F & D Bonaccorso Pty Ltd
FIRST RESPONDENT:
City of Canada Bay Council
SECOND RESPONDENT:
Arinson Pty Limited
THIRD RESPONDENT:
Omaya Holding Pty Limited
FOURTH RESPONDENT:
Omaya Investments Pty Limited

FILE NUMBER(S): 40171 of 2007

CORAM: Biscoe J

KEY ISSUES: Judicial Review :- Apprehended Bias - whether council development consent for demolition of houses including heritage listed items invalid - whether council failed to take into account mandatory considerations - principles concerning failure to consider mandatory considerations - whether council obliged, or failed, to consider heritage impact statement - principles concerning the content of heritage impact statements - whether council obliged, or failed, to consider its conservation policy, matters required under local environmental plan, public submissions, draft local environmental plan and draft development control plan - whether council apparently biased in its determination of development consent, in the sense it had predetermined the application, by reason of contracting with developer to accept and approve future application for demolition of properties including heritage items - principles concerning apprehended bias by councils

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 4, 5(a) and (c), 79C(1)
Environmental Planning and Assessment Regulation 2000 cll 87, 88, 89, 91
Protection of the Environment Administration Act 1991 s 6(2)

CASES CITED: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ;
Azriel v NSW Land and Housing Corporation [2006] NSWCA 372;
Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171;
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234;
BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237;
Blue Mountains City Council v Prospect County Council (1991) 74 LGRA 129;
Bycon Pty Ltd v Moira Shire Council [1998] VSC 25;
Carstens v Pittwater Council (1999) 111 LGERA 1;
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Drake-Brockman v Minister for Planning [2007] NSWLEC 490;
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ;
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369;
Franklins Ltd v Penrith City Council [1999] NSWCA 134;
Gray v Minister for Planning (2006) 152 LGERA 258;
Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333;
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Hill v Woollahra Municipal Council (2003) 127 LGERA 7;
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438;
Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43;
Johnson v Johnson (2000) 201 CLR 488;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277;
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70;
Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270;
Lower Hutt City Council v Bank [1974] 1 NZLR 545;
Manly Council v Hortis (2001) 113 LGERA 321;
Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373;
McGovern v Ku-ring-gai Council [2007] NSWLEC 22;
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507;
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ;
Old St Boniface Resident’s Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117;
Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426;
Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402;
Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160;
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57;
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425;
R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501;
R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 ;
R v Corporation of the City of Marion; ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436;
R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386;
R v Gough [1993] AC 646;
R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304;
R v Sevenoaks District Council ex parte Terry [1985] 3 All ER 226;
R v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 3 All ER 234;
R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383;
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21;
Steeples v Derbyshire County Council [1984] 3 All ER 468;
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254;
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Williams v Director-General of the Department of Environment and Conservation (2) [2004] NSWLEC 613;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 26, 27, 29 June and 5, 24 July 2007

DATE OF JUDGMENT:
31 August 2007

LEGAL REPRESENTATIVES: APPLICANT:
Mr P Tomasetti and Mr J L Doyle
SOLICITORS:
Thomson Playford

FIRST RESPONDENT:
Mr J E Griffiths SC and Mr S J Free
SOLICITORS:
Maddocks
THIRD AND FOURTH RESPONDENTS:
Mr J A Ayling SC
SOLICITORS:
Gadens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2007

40171 of 2007

F & D BONACCORSO PTY LTD v CITY OF CANADA BAY COUNCIL AND ORS
JUDGMENT

1 HIS HONOUR: The applicant, F & D Bonaccorso Pty Ltd, challenges the validity of a consent granted by the first respondent, City of Canada Bay Council, on 20 February 2007 (2007 Demolition Consent) to a development application dated 17 November 2006 (No 649/2006) (2006 Demolition DA) lodged by the third respondent, Omaya Holding Pty Ltd.

2 The 2006 Demolition DA sought consent to demolish ten houses and ancillary structures situated at 2, 4, 6, 8, 10, 11, 12, 13, 15 and 21 Chapman Street, Strathfield. Those properties are in an area known as the “Strathfield Triangle” bounded by Leicester Avenue, Parramatta Road and the main northern railway line, Strathfield. Five of the houses – those at 4, 8, 12, 13 and 21 Chapman Street – are listed as “heritage items” under the Concord Local Environmental Plan No. 103 (Heritage) (Heritage LEP).

3 At the date of the grant of the 2007 Demolition Consent the second respondent, Arinson Pty Ltd, owned the subject properties except 12 and 15 Chapman Street which were owned by the fourth respondent, Omaya Investments Pty Ltd. The third respondent has entered into an agreement with the second respondent whereby the third respondent enjoyed a right to purchase the second respondent’s said properties. The second respondent filed a submitting appearance.

4 At the date of the 2007 Demolition Consent, the subject land was subject to the provisions of, inter alia, the Concord Planning Scheme Ordinance (CPSO), the Heritage LEP and the Strathfield Triangle Development Control Plan (Strathfield Triangle DCP).

5 The applicant challenges the validity of the 2007 Demolition Consent on three grounds:

(a) council failed to take into consideration a heritage impact statement as required by cl 7(3) of the Heritage LEP and s 79C(1) of the Environmental Planning and Assessment Act 1979 ( EPA Act );
(b) council failed to take into consideration one or more of the following matters required to be taken into consideration by s 79C(1) of the EPA Act :

(i) council’s “ Heritage Conservation Policy Concord ” of 1999 ( 1999 Policy );

(ii) matters required under cl 10 of the Heritage LEP;

(iii) public submissions; and

(iv) the Draft City of Canada Bay Local Environmental Plan (Draft LEP) and Draft City of Canada Bay Council Development Control Plan (Draft DCP);

(c) council was apparently biased in its determination of the 2006 Demolition DA, in the sense that it appeared to have predetermined the application.

background

6 Council had granted a number of earlier development consents in relation to demolition of the heritage items on, and to development of, the subject properties.

7 On 30 June 2000, council contracted to sell to the second respondent 4, 8, 13, 17 and 19 Chapman Street. Of these properties, 4, 8 and 13 were listed as heritage items under the Heritage LEP. Special condition 17 of the contract provided that council agreed, as consent authority, to accept and approve an application for demolition of all or any of the properties comprised in the contract subject to conditions as it may reasonably impose in accordance with its usual practice when imposing such conditions. Special condition 17 is the platform for the applicant’s apprehended bias challenge.

8 On 4 July 2000 council, as consent authority, consented to three development applications, lodged by itself as owner on 19 June 2000, seeking demolition of the houses on 4, 8, and 13 Chapman Street. Heritage impact statements were considered in that context. It appears that those consents lapsed.

9 On 22 August 2000, council resolved that it raised no issue with demolition of the heritage items in the Strathfield Triangle listed in the then draft Heritage LEP.

10 Between November 2000 and July 2003 council granted consent to three development applications by the second respondent seeking demolition of existing buildings on the subject properties. First, on 21 November 2000 council granted development consent to the demolition of existing buildings on the subject properties and for the erection of 146 units within three residential flat buildings. Second, on 11 December 2002 council granted a similar development consent. It was a term of the 2002 consent that the November 2000 consent be surrendered. Third, on 1 July 2003, council granted a similar development consent. It was a term of the 2003 consent that the consents granted in November 2000 and December 2002 be surrendered. They were surrendered on 7 August 2003.

11 In the meantime, in February 2003, the applicant commenced proceedings in this Court challenging the validity of the 2002 development consent. On 25 August 2003, the applicant amended its Application to also challenge the validity of the 2003 development consent. The 2003 proceedings also raised other issues. On the first day of the hearing of the 2003 proceedings before me, 25 October 2006, (a) the first respondent filed Points of Defence in which it admitted that the 2003 development consent was invalid; and (b) the applicant acknowledged that there was no utility in proceeding with its challenge to the 2002 development consent because it had been surrendered. The 2003 proceedings were heard by me in October 2006 and March 2007. Thus, at the time of the 2007 Demolition Consent, the 2003 proceedings were part heard. Reasons for judgment were published on 30 March 2007. On 5 April 2007 a declaration was made that the 2003 development consent was invalid and of no force or effect and an order was made setting it aside.

12 On 6 July 2006 a construction certificate was issued to the fourth respondent for the demolition of structures on the subject properties. Later that day demolition work occurred. It included partial demolition of three of the said five heritage items, namely, the houses at 4, 8 and 12 Chapman Street. On 6 July 2006, in the 2003 proceedings, the Court granted an ex parte interlocutory injunction, restraining the second and third respondents from carrying out further development on 4,6 and 8 Chapman Street. At that time the second respondent was in liquidation and the applicant had not obtained leave from the Federal Court or Supreme Court under s 471 of the Corporations Act 2001 to bring its motion seeking interlocutory relief. On 11 July 2006 it was replaced by an injunction restraining the third and fourth respondents from carrying out further works without further development consent on any of the subject properties (subject to certain exceptions). On 23 August 2006, the injunction was continued in similar form. It was not limited as to duration. Later the demolition issue was resurrected in the present proceedings and on 2 May 2007, by consent, the Court granted an injunction restraining the third and fourth respondents from carrying out further development on the subject properties including but not limited to demolition (subject to certain exceptions). It was not limited as to duration. On 17 July 2007, by consent, the Court granted an injunction in the same terms against the second respondent. The liquidation of the second respondent had been terminated by the Supreme Court on 16 July 2007.

13 Earlier, in June 2006, Ms Hubert had provided council with a Heritage Review which referred to a proposed new consolidated local environmental plan. She recommended the removal of the heritage items in the Strathfield Triangle, stating: “Planning controls in this precinct allow development of 3 – 10 storeys adjacent to single storey free standing houses. The setting of these places is greatly compromised by the height of development allowed on adjacent sites. There is no incentive under these planning controls for owners of the heritage items to maintain the properties and adjacent development is eroding the amenity of the heritage items”. The draft of that local environmental plan, dated 29 December 2006, went on public exhibition on 6 February 2007 and reflected her recommendation.

THE 2006 DEMOLITION DA

14 The 2006 Demolition DA stated that a heritage impact statement was attached. It was entitled “Statement of Heritage Impact” and dated November 2006. The author was Robert Staas, Director/Heritage Consultant of Noel Bell Ridley Smith & Partners Architects Pty Limited (Staas Report). In his view, demolition of the five subject heritage items was reasonable and acceptable and should be approved by council.

15 Another document accompanying the 2006 Demolition DA was a Statement of Environmental Effects dated November 2006 by Smyth Planning. It noted that the Strathfield Triangle DCP did not acknowledge that the heritage items in Chapman Street were worthy of retention and concluded that the development was worthy of approval.

16 Council advertised the development application by notice in a local newspaper on 12 December 2006. The notice stated that “the application (plans and associated documentation)” may be viewed at the Canada Bay Civic Centre from 12 December 2006 to 9 January 2007 when submissions closed.

17 On 18 December 2006 council retained Mr L Fletcher of Planning Ingenuity Pty Ltd to undertake an assessment of the 2006 Demolition DA. Mr Fletcher is a planner, not a heritage expert. The letter stated that council had arranged for the application to be assessed by council’s heritage adviser, Ms Pamela Hubert, with regard to the proposed demolition of the heritage items.

18 On 20 December 2006 Ms Hubert provided council with her heritage advisor’s report of that date (Hubert Report). Like Mr Staas, she too considered that demolition of the heritage items was acceptable, subject to a condition that they be archively recorded. Any member of the public who attended council’s offices between 12 and 20 December 2006 in response to the public notice could not have seen the Hubert Report. The evidence does not disclose whether or not the Hubert Report was available to the public between 20 December 2006 and 20 February 2007, the date of the 2007 Demolition Consent. Written submissions from the public were received by council from at least 18 December 2006.

19 On 19 December 2006 the applicant’s solicitors, Thomson Playford, wrote to council’s solicitors, Maddocks Lawyers, requesting copies of the development application, statement of environmental effects, heritage reports and any plans lodged with the development application. The applicant’s solicitors wrote to council on 22 December 2006 stating that council had admitted in the pending 2003 proceedings that there was no valid consent for demolition of the five heritage items in Chapman Street. In support of that “letter of objection”, two affidavits were enclosed sworn by Peter Lonergan, heritage architect, in these proceedings. Mr Lonergan, inter alia, later considered that the heritage items were significant and that it was possible to undertake works to remedy the demolition works that had already been carried out. On 22 January 2007 council replied stating: “Please find enclosed a copy of the Development Application Form, Statement of Environmental Effects, Statement of Heritage Impact and plans showing the location of the dwellings to be demolished”. This Statement of Heritage Impact was the Staas Report. The documents provided did not include the Hubert Report. On 8 February 2007 Thomson Playford wrote again to council’s solicitors, inter alia, alleging errors and omissions in the documents supporting the development application. On 14 February 2007 council wrote to the applicant’s solicitors advising that the development application would be considered at council’s meeting on 20 February 2007.

20 Mr Staas wrote to council on 31 January 2007 expressing the view that completion of demolition of the subject heritage items would not significantly impact on any other heritage items in the vicinity.

21 Mr Fletcher’s report was before council at its meeting on 20 February 2007. It annexed the Staas Report and the Hubert Report. Mr Fletcher recommended that council refuse consent to the development application. Mr Fletcher stated that he was not a heritage expert and therefore relied upon the expertise of appropriately qualified experts. He noted that Mr Staas was a well recognised heritage expert whose report had been reviewed by a consultant (Ms Hubert) that council relied upon for heritage advice. He continued:-

Accordingly, we do not question the conclusion of these two heritage experts that ultimately the demolition of heritage items and the other buildings may be justified in order to allow redevelopment of the projects.

However, we note that the Statement of Heritage Impact was based on the premise that the buildings were to be demolished to enable the erection of a residential flat building in accordance with a development consent issued for that purpose. That premise is, in effect, no longer valid in that the circumstances have changed as a consequence of the current Land and Environment Court proceedings 40134 of 2003. As previously indicated, as part of these proceedings, Council through its lawyers has admitted that the consent previously issued is invalid. Therefore, for all intents and purposes, there is no valid consent to redevelop the land.

legal Principles concerning failure to have regard to mandatory considerations

22 In order to succeed in its first and second grounds of challenge to the 2007 Demolition Consent the applicant must make good two factual propositions. First, that a mandatory consideration, that was objectively relevant to the application, was not taken into account. Second, that the error was material such as to justify the intervention of the Court. It need not be shown to be of critical or decisive significance in the council’s decision; on the other hand de minimis non curat lex. See Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 295 [66] per Basten JA, (with whom Handley JA and Hunt AJA agreed). If those two factual propositions are made good, then the 2007 Demolition Consent is invalid and, subject to discretionary considerations as to the granting of relief, liable to be declared invalid: Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51-52 per Street CJ.

23 Section 79C(1) of the EPA Act mandates matters that a consent authority is required to take into consideration if they are relevant to the development the subject of a development application. In determining whether failure to take into consideration a matter referred to in s 79C(1) constitutes a material error, it is necessary to have regard to the totality of factors required to be taken into consideration and the weight to be attributed to each in respect to the proposed development, bearing in mind that matters of weight are generally beyond judicial review and are left to the decision-maker: Parramatta City Council v Hale (1982) 47 LGRA 319 (CA) at 335 per Street CJ; Everall v Ku-ring-gaiMunicipal Council (1991) 72 LGRA 369.

24 Circumstances in which an inference may be drawn that a relevant matter was not considered were addressed in Manly Council v Hortis (2001) 113 LGERA 321. There the NSW Court of Appeal in a joint judgment analysed as follows its earlier decisions in Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134:

[21] There is no direct evidence that the council considered cl 10(3) or cl 17 of the LEP. In particular, neither clause is referred to in the minutes of the council's relevant meetings or the material which was before the council at that meeting, and no witness was called to say that either clause was considered. In the manner later described, the Land and Environment Court held that decisions of this Court, particularly Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134, required an inference in those circumstances that the council did not consider the requirements of cll 10(3) and 17 in the absence of other evidence that it did so and that there was no real evidence that the council considered those requirements.

[22] Neither Currey nor Franklins establishes any new principle in relation to inferential fact-finding by the Land and Environment Court. In each of those cases, this Court held that the available evidence founded an inference that a particular precondition to consent had not been met by the relevant council.

[23] Currey was concerned with cl 19 of the Sutherland Local Environmental Plan 1993 (NSW), Foreshore Building Lines. Clause 19(1) set out the objectives of the foreshore building lines, which included the preservation and enhancement of the natural features and vegetation of the area where the land meets the water and restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures. Subject to a proviso contained in cl 19(6), (5) required the council to refuse consent to a development on land having a foreshore building line unless it was satisfied that certain buildings or works (if any) would be removed.

comes down essentially to the report and its recommendations (and the appendices) which were before the Council and upon which it based its decision

Was it enough that the officer's report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not. Without some elucidation of the relevance of cl 19 to the application and the need to consider the existing two-storey boatshed in the context of cl 19(5) and (6), the bare reference to cl 19 was capable of misleading the council in its required task. This is principally because the report failed to refer to the prohibition in cl 19(5).

25 Taking matters into consideration calls for more than simply adverting to them. In Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [64] Spigelman CJ (Meagher and Beazley JJA agreeing) held that “mere advertence to a matter required to be taken into consideration is not sufficient see: eg Parramatta City Council v Hale (1982) 47 LGRA 319 (at 339)”. It has been said that taking matters into consideration calls for sufficient information, an understanding of the matters and of the significance of the decision to be made, and a sufficient process of evaluation sufficient to warrant the description of the matters being taken into consideration: Weal v Bathurst City Council (2000) 111 LGERA 181 at 201 [80] per Giles JA (Priestley JA agreeing). His Honour held at [80] that for a matter to be taken into consideration by a council:

Parramatta City Council v Hale

King v Great Lakes Shire Council

Currey v Sutherland Shire Council

26 In Kindimindi (above) at 297 [77] Basten JA (Handley JA and Hunt AJA agreeing) appeared to have had reservations about whether the last sentence in that passage ran the risk of an impermissible review of the merits. However, later in Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] Basten JA ( Santow and Ipp JJA agreeing) quoted the last two sentences from that passage in Weal with apparent approval after stating:

Judicial review is concerned only with the legality of an administrative decision, in the sense of whether or not the decision-maker has exceeded the legal boundaries of his or her powers. Those boundaries are defined, in part, by reference to the consideration of matters which are legally impermissible and the failure to consider matters to which the law requires that consideration be given. The requirement of consideration is not satisfied by formalistic reference.

27 Where matters to be considered are not detailed or quite specific, advertence in general terms to their impact may suffice. In Hill v Woollahra Municipal Council (2003) 127 LGERA 7 (CA) Hodgson JA (Ipp JA and Davies AJA agreeing) held:

[50] The cases of Ligon [North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (NSWCA)] and Zhang [v Canterbury City Council (2001) 51 NSWLR 589, 115 LGERA 373 (CA)] are authority for the proposition that, where a body such as a local council is required by a statute to address a question posed by that statute or by an instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have adverted to the topic of the question.
…
[53] Another consideration relevant to this question is that, so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not.

[54] Ligon 302 and Zhang were cases where the questions to be addressed were detailed and quite specific. In Ligon 302 , they were detailed provisions as to privacy, sunlight, daylight and views, building line, maximum size, landscaping and number of storeys. In Zhang , what was required to be considered was a standard that a brothel should not be located within 200 metres of a church or school. In those cases, it was inferred that the body in question had done no more than advert in general terms to the impact of the development, and this was held to be insufficient.

28 It is well established that the consideration must be “proper, genuine and realistic”: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [28] per Tobias JA (Beazley JA agreeing) citing Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at 266–267 [37]. Those epithets need to be applied cautiously lest they encourage a slide into impermissible merits review: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 (CA) at [74] – [79]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [62] (CA); Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] – [51]; Belmorgan at [76] per Basten JA. In Kindimindi at 297 [74] Basten JA said that the formulation “proper, genuine and realistic consideration of the merits of the case…. should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. That kind of challenge must be assessed on manifest unreasonableness grounds”. The applicant in the present case does not contend that the decision to grant the 2007 Demolition Consent was vitiated by manifest unreasonableness. Basten JA again warned about the formulation in Belmorgan at [77] – [78] in which he ascribed meanings to the words “proper” and “genuine” but concluded that “realistic” had no ready meaning in the context of judicial review:

By way of explication, it may be noted that use of the word proper may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell [1925] AC 338 and The Queen v Toohey; Ex parte Northern Land Council (198081) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word genuine may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of improper purpose , as explained by Aickin J in Ex parte Northern Land Council . Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, realistic finds no ready referent in the language of judicial review.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

realistic

29 The question of “proper, genuine and realistic consideration” arises where the decision-maker has purported to consider a relevant matter. That formulation may be viewed as capturing the notion of constructive failure to carry out a function. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339 [41] Gaudron J said:

For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form 51 . A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

30 Failure to accord natural justice is also a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [25] per Gummow and Callinan JJ (Hayne J agreeing); Kindiminidi at [73].

31 Constructive failure to consider a relevant matter is illustrated by Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 where Street CJ said:

…it is contended that the council failed to take into consideration the topics of parking, traffic and access, being topics directly included within the matters the council was bound by s 90(1) to take into consideration. The challenge is of a failure sub modo on the part of the council. Each of these topics was, technically speaking, dealt with in the council's decision. It is the manner in which this was done which is relied upon as establishing invalidity.

32 In Kindimindi (above) at [102] Basten JA said:

Hale

Ground 1: Alleged Failure to consider a Heritage Impact Statement

33 One of the documents accompanying the 2006 Demolition DA, was the Staas Report which was entitled “Statement of Heritage Impact”. The applicant submitted that council failed to consider a heritage impact statement as required by cl 7(3) of the Heritage LEP because the Staas Report is not a “heritage impact statement” within the definition in cl 6 of the Heritage LEP or, even if it is, council expressly decided not to consider part of it. The respondents submitted that the Staas report is a heritage impact statement and alternatively, if it is not, that the Hubert Report is a heritage impact statement or fills any shortcomings in the Staas Report.

34 Clause 61H(7) of the CPSO provided that:

When determining a development application for land to which this clause applies, the Council must consider the impact of the proposed development on the heritage significance of heritage items on the land to which this clause applies, whether or not the heritage items are the subject of the development application.

land to which this clause applies

35 In determining the 2006 Demolition DA, council was required to take into consideration the Heritage LEP because it is an environmental planning instrument that was relevant to the determination: s 79C(1)(a)(i) EPA Act. It was relevant because it defined a “heritage item” to include five of the subject properties, namely, 4, 8, 12, 13 and 21 Chapman Street: see schedule 1.

36 Clause 2(c) of the Heritage LEP stated that the “aims, objectives, policies and strategies of this plan are … to maintain the Mid and Late Victorian, Federation and Inter-War character of the Concord local government area”. Clause 10(1) of the Heritage LEP mandated that a consent authority must assess certain matters when determining a development application affecting a heritage item:

37 Clause 7(3) of the Heritage LEP prohibited council from granting consent to the 2006 Demolition DA unless it had considered a heritage impact statement for a heritage item:

7 Protection of heritage items, heritage conservation areas and relics

(a) demolishing…a heritage item…within a heritage conservation area,…

…

38 The applicant’s argument hinges to a large degree upon the following definition of “heritage impact statement” in cl 6 of the Heritage LEP:

heritage impact statement , in relation to a heritage item or a building, work, relic, tree or place within a heritage conservation area, means a statement:

39 This definition requires a heritage impact statement to be prepared in accordance with the provisions of the Heritage Office and Department of Urban Affairs and Planning publication entitled “Statement of Heritage Impact” (Heritage Office Guidelines). The Heritage Office Guidelines relevantly provided:

This guideline has been prepared to assist people who wish to carry out work that could impact on a heritage item. They will also assist councils who must consider whether to approve such development.

A statement of heritage impact (SOHI) is meant to convey what the impact or impacts of a proposal would be. When considered along with a policy or plan for conservation and management, an informed decision can be made whether to allow the development to proceed. This guideline explains what comprises a SOHI, when it is needed, and the level of detail to be provided.

The guideline supports the Heritage Council’s view that a SOHI become a regular part of the approval process. A SOHI might form part of a statement of environmental effects, a review of environmental factors or an environmental impact statement.

…

A SOHI needs to explain how the heritage value of an item is to be conserved, or preferably enhanced, by the proposed development. This could involve stabilisation and repair work, restoration, reconstruction or redevelopment for a new use

…

The steps to be taken should be noted and in doing this, it is helpful to refer to the seven criteria used to define heritage significance (criteria can be downloaded from the Heritage Office website ) in order to explain how the item’s heritage value is to be retained.

Where the effect of proposed work is likely to be detrimental to the heritage significance of the item or area, a SOHI needs to argue why such action is the only viable solution and explain why alternatives are not. The works that will have a negative impact should be listed, with statements made under each point as to why the impact/s cannot be avoided, and what steps have been taken to minimise their effect/s. It might also be useful to consider these in relation to the criteria of heritage significance.

Table 1

40 Table 1 of the Heritage Office Guidelines contained four questions concerning a proposed change to a heritage item which involves demolition of a building or structure:

· Have all options for retention and adaptive re-use been explored?

· Can all of the significant elements of the heritage item be kept and any new development be located elsewhere on the site?

· Is demolition essential at this time or can it be postponed in case future circumstances make its retention and conservation more feasible?

· Has the advice of a heritage consultant been sought? Have the consultant’s recommendations been implemented? If not, why not?

41 The “seven criteria” used to define cultural significance referred to in the above quotation from the Heritage Office Guidelines are said by the applicant to be the seven criteria set out in the Heritage Manual published by the Heritage Office (Heritage Manual), as follows:

· cultural or natural places; or

· cultural or natural environments.

(or a class of the local area’s

· cultural or natural places; or

· cultural or natural environments.)

42 The respondents questioned whether these criteria are the criteria referred to in the Heritage Office Guidelines because the Heritage Manual in evidence was printed in July 2001 which post-dates the publication of the Heritage LEP in the Government Gazette eight months earlier in December 2000. I accept that the Heritage Manual in evidence contains the criteria. That was the unchallenged evidence of Peter Lonergan, heritage architect. The date of printing does not establish that it was relevantly different at the date of publication of the Heritage LEP. In any case, the reference to the criteria which “can be downloaded from the Heritage Office website” I would take to be ambulatory.

43 The proposed demolition of the subject heritage items was “advertised development” under cl 15 of the Heritage LEP, which provides:

44 “Advertised development” is relevantly defined in s 4 of the EPA Act as follows:

advertised development

45 Advertised development is relevantly regulated in the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) Part 6 Division 7 in cll 87, 88, 89 and 91, which relevantly provide:

(b) cause notice of the application to be published in a local newspaper (referred to in this Division as a published notice).

…

46 As required by cll 87, 89 and 91 of the EPA Regulation, council published notice of the 2006 Demolition DA in a local newspaper on 12 December 2006 and made it available for public inspection, together with its accompanying information including the Staas Report.

Content of a Heritage Impact Statement

47 Whether a heritage impact statement meets mandatory requirements is a matter of substance rather than form. That was said to be so in relation to environmental impact statements in Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 (CA).

48 The applicant submitted, and the respondents disputed, that the content of a heritage impact statement should be governed, by analogy, by the same principles as have been authoritatively established in relation to an environmental impact statement required under the provisions of the EPA Act. Six content principles in relation to an environmental impact statement were identified in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 31 by Pearlman CJ, substantially following Cripps J in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 (on appeal see (1984) 53 LGRA 160), of which the following five are relevant:

Prineas

Liverpool City Council

Prineas

49 The content principles in Schaffer were approved by the Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349 (CA) at 356-357 per Handley JA (Kirby ACJ and Priestley JA concurring). They were adopted in relation to a fauna impact statement in Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 at 278-280 by Stein J, as Handley JA noted in Helman.

50 The respondents submitted that an analogy between an environmental impact statement and a heritage impact statement is inapt because the legislature has anointed the former but not the latter in four respects.

51 First, the respondents submitted that they serve different purposes because an environmental impact statement is required to be exhibited under the EPA Regulation and therefore the public participation process is different. That is correct. However, in a case such as the present where a purported heritage impact statement accompanied the 2006 Demolition DA, the public participation process bears some similarity to that applicable to an environmental impact statement under the EPA Regulation. That is because cl 16 of the Heritage LEP provides that a development for the complete or substantial demolition of a heritage item is advertised development. Clause 89(1)(d) of the EPA Regulation requires a written notice and published notice of a development application to state that the application “and the documents accompanying that application” may be inspected at the consent authority’s principal office. Clause 91(1) of the EPA Regulation requires the consent authority to ensure that any accompanying information is available for inspection. The importance of these requirements is underlined by a specific objective of the EPA Act, stated in s 5(c), “to provide increased opportunity for public involvement and participation in environmental planning and assessment”.

52 Second, the respondents pointed out that an environmental impact statement is part of a tightly regulated statutory procedure employed where a development is designated or (in the Part 5 environment) the determining authority concludes that an activity will significantly affect the environment, and its substantive content is dictated by the EPA Regulation. At the time that the content principles concerning an environmental impact statement were formulated the EPA Regulation cl 57 provided that an environmental impact statement “shall” include a number of matters: Prineas (above) at 411; Guthega. In contrast, there are three cumulative requirements for a heritage impact statement in the definition in cl 6(a), (b) and (c) of the Heritage LEP (set out above at [38]). The respondents submitted that the change from the past tense in (a) to the present tense in (b) and (c) is significant and, further, that the phrase “has been prepared” in (a) strongly suggests that it is not imposing an obligation as to content. I do not accept the latter submission: the definition, in my view, is obligatory as to content. I shall return to the former submission.

53 Third, the respondents pointed out that, unlike an environmental impact statement, there is no requirement that a development application be accompanied by a heritage impact statement. The only requirement is that council considers a heritage impact statement: Heritage LEP cl 7(3). On the other hand, a heritage impact statement may accompany a development application and in the present case the Staas report in fact did accompany the 2006 Demolition DA.

54 Fourth, the respondents pointed out that there is no requirement that a heritage impact statement has to be prepared by someone with any particular qualifications.

55 A heritage impact statement, if it is not a species of environmental impact statement, at least has the same object of assisting the decision-maker. A building is part of the built environment. The definition of “environment” in s 4 of the EPA Act “includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings”. In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Preston CJ emphasised the fundamental importance of ecologically sustainable development and the key role of an environmental impact statement in that context:

[57] Ecologically sustainable development is fundamental to meeting the needs of the present and future generations. It is a touchstone, a central element , in decision-making relating to planning for and development of the environment and the natural resources that are the bounty of the environment: Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [178]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at 271 [110], 262 [113].
…
[67] Requiring prior environmental impact assessment and approval is a key means of achieving ecologically sustainable development. It facilitates achievement of the principle of integration ( ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes : s 6(2) of Protection of the Environment Administration Act 1991(NSW) adopted by s 5(1) of NPW Act. See also Principle 4 of Rio Declaration on Environment and Development). If environmental considerations are to be an integral part of decision-making processes, it is necessary to assess the environmental impacts and risks associated with proposed activities. Environmental impact assessment is widely applied to predict the impacts of proposed activities on the environment.

Conservation Council of South Australia Inc v Development Assessment Commission

Tuna Boat Owners Association of South Australia Inc v Development Assessment Commission

The Precautionary Principle in Impact Assessment: An International Review

Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use

[69] The requirement for prior environmental impact assessment and approval enables the present generation to meet its obligation of intergenerational equity by ensuring the health, diversity and productivity of the environment is maintained and enhanced for the benefit of future generations.

56 In my opinion, these considerations apply similarly to a heritage impact statement.

57 An object of an environmental impact statement, as well as a heritage impact statement, is to assist the decision-maker. One matter the decision-maker must take into consideration is the goal of ecologically sustainable development. That is because the mandatory requirement of consideration of the “public interest” in s 79C(1)(e) is ample enough, having regard to the subject matter, scope and purpose of the EPA Act, to embrace the goal of ecologically sustainable development and its principles where they are relevant to an issue: Carstens v Pittwater Council (1999) 111 LGERA 1 at 25 (Lloyd J); Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [54] (Talbot J); BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 at 257 (McClellan CJ); and Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [123] (Preston CJ).

58 As to the relevance of ecologically sustainable development in the context of Part 3A of the EPA Act (to which s 79C is inapplicable) see Gray v Minister for Planning (2006) 152 LGERA 258 at [107] – [117] (Pain J) and Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (Jagot J).

59 The goal of ecologically sustainable development is critical to the survival and well being of humankind and other species. Encouragement of ecologically sustainable development is one of the objects of the EPA Act: s 5(a)(vii). Ecologically sustainable development in the EPA Act has the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991. Implementation of the principle of inter-generational equity is one of the ways in which the goal of ecologically sustainable development can be achieved: s 6(2) of the Protection of the Environment Administration Act 1991.

60 An environmental impact statement and a heritage impact statement both serve the principle of inter-generational equity. Once a heritage listed building is demolished it is lost forever to future generations. A photograph of it in an archive is but a reminder of what once was. I consider that the goal of ecologically sustainable development and the principle of inter-generational equity inform the principles governing both the content of environmental impact statements and the content of heritage impact statements. Consequently, in my opinion, the content principles in Schaffer apply mutatis mutandis to a heritage impact statement. They may be stated as follows:

1. A heritage impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible heritage consequences of the proposed development.
2. The purpose of an heritage impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed.
3. The heritage impact statement is not required to be perfect. It need not cover every topic or explore every avenue.
4. The heritage impact statement must not be superficial, subjective or non-informative.
5. It should be comprehensive in its treatment of subject matter and objective in its approach.

61 The applicant submitted that the Staas Report was not a “heritage impact statement” within the definition in the Heritage LEP for two reasons:

needs to answer

Schaffer,

62 Due to the nature of these criticisms, it is necessary to consider the Staas Report in full:

STATEMENT OF HERITAGE IMPACT
PROPOSED DEMOLITION OF 4,8,12,3[SIC 13] and 21 CHAPMAN AVENUE STRATHFIELD
NOVEMBER 2006

Introduction
This statement of heritage impact has been prepared to accompany a Development Application to Canada Bay Council that involves the demolition of a number of heritage items at Chapman Avenue Strathfield for the erection of a residential flat building. The assessment has been carried out in accordance with the guidelines of the NSW Heritage Office by Robert Staas Director and Heritage Consultant of Noel Bell Ridley Smith & partners Architects Pty Limited for Omaya Holdings Pty Limited. The assessment meets a requirement of the Canada bay LEP in regard to applications involving Heritage Items.

Background
The subject buildings were identified as heritage items in the Concord LEP 103 as a result of the Concord Heritage Study undertaken in 1998 by Perumal Murphy Wu. Council subsequently resolved to delete the buildings from the Heritage Schedules but failed to do so. The items form part of a larger redevelopment site for which Development Approval was granted that implied demolition of the items. An injunction was taken out against the further demolition of the items by adjoining neighbours on the basis that the Council had failed to take into consideration a statement of heritage impact that addressed the loss of the items as required by Clause 7(3) and (4) of Part 2 – Heritage Conservation of the Concord LEP 103 (Heritage).

At the present time construction on the site has ceased pending a consideration of this statement of heritage impact by the Council of The City of Canada Bay.

Heritage Listings
A heritage Study of the Municipality of Concord was undertaken in 1998 – 1999 by Perumal Murphy Wu and an inventory of heritage items was adopted by Concord Council in 2000 for inclusion in the Concord LEP 103. Subsequently Concord was joined with Drummoyne Council to form The City of Canada Bay.

The subject dwellings are identified individually as heritage items in the City of Canada Bay as part of the former Concord LEP 103 and are included in the State Heritage Inventory within the suburb of Strathfield.

No. 4 Chapman Street
No 4 Chapman Street is identified to be a good example of a modest late 19th century cottage, rare for Concord though more common in this locality. Neglected but capable of reconstruction. Windows boarded up and repairs and maintenance needed (January 1999). It is described as a Late Victorian house with a high pitched corrugated iron roof and a front facing gable. A brick chimney has an arched hood. The barge boards are ornamental and the front window arched. The Front picket fence, partially lost and in disrepair.

[photo]

No. 8 Chapman Street
No. 8 Chapman Street is identified to be a good example of a timber Federation cottage. Constructed in weatherboard with a corrugated iron roof. Single front-facing gable including a finial and bargeboard. Window and verandah awnings. Timber verandah posts and window hood with brackets and spindle valances. Fair condition with steel post and chain wire fence (January 1999).

[photo]

No. 12 Chapman Street
No. 12 Chapman Street is identified to be a vernacular timber cottage, rare for Concord. In need of maintenance and repair but essentially intact. A simple, symmetrical cottage with corrugated iron roof, gabled to sides and front verandah. Weatherboard cladding and four paned sash windows. Lattice enclosures to sides of front verandah. Condition – Poor(January 1999).

[photo]

No. 13 Chapman Street
No. 13 Chapman Street is identified to be a modest timber example of a federation Cottage with weatherboard cladding corrugated iron roof with projecting front gable. A corrugated iron bullnose verandah, triple casement windows suggest construction c1915. Timber post and rail fence with chainwire infill. Carport structure added to front of building. Condition – Good. (January 1999).

[photo]

No. 21 Chapman Street
No. 21 Chapman Street is identified to be an intact Federation house with weatherboard cladding, decorative bargeboard, awning over front window and with a corrugated iron roof with a hipped side section. Timber veranda posts with ornamental brackets and valance. Brick front fence with steel gates and blockwork side fencing. Condition – Fair (January 1999).

[photo]

Existing Situation
Acting on the Development Approval granted by Council and a Construction Certificate the Applicant commenced demolition of the heritage items and a number of other buildings that constituted his development site. As a result the buildings are now in a state of partial demolition as follows:

No. 4 Chapman Street
The building has been partially demolished to the point that reinstatement could only be achieved through a full reconstruction. The surviving fabric has no ability to demonstrate the limited local significance associated with the site prior to the actions taken by the Applicant acting in accordance with the Development Approval.

[photo]

No. 8 Chapman Street
The building has been partially demolished including the removal of much of the external weatherboard cladding, the verandah and front window awning detailing and internal finishes. The building frame could be relocated or the building reconstructed using extensive amounts of new materials replicating the original design. These options have limited heritage value in light of the limited significance of the place as a typical representative example and the loss of context arising from other demolitions in the immediate context.

[photo]

No. 12 Chapman Street
No. 12 Chapman Street has been stripped externally of some of its weatherboards and internally of some of its finishes and fittings. The building was in poor condition prior to the partial demolition and would require substantial reconstruction and replacement of finishes. The building frame is capable of relocation to another site.

[photo]

No. 13 Chapman Street
No. 13 Chapman Street remains unaltered from its condition in the 1998 Heritage Study and has not been affected by the demolition works. It retains moderate local heritage value as a typical example of a modest timber Federation cottage. The context of the building has been affected by the other demolition works in the street.

[photo]

No. 21 Chapman Street
No. 21 Chapman Street remains substantially unaltered from its condition in the 1998 Heritage Study and has not been affected by the demolition works. It retains its character as a small Federation house but has lost its context through the removal of other buildings in the street. And in its juxtaposition against adjoining units.

[photo]

The Concord LEP 103 – Part 2, Heritage Conservation
Under the LEP, the demolition of heritage items requires Development Consent and the Council must consider a heritage impact statement for the items taking into consideration the extent to which the carrying out of the development could adversely affect the heritage significance of the items. This statement fulfils the requirement for an assessment of Heritage Impacts associated with the demolition. The following standard assessment questions are those in the NSW Heritage Office guidelines

· Have all options for retention and adaptive reuse been explored?

The re-use of the buildings was not considered following Council’s approval of a development application that involved their demolition. The buildings had limited potential for adaptive reuse as single residences or commercial offices and professional suites. The timber framed buildings also had the potential for relocation [o]n this site or to another site. While relocation is normally a last resort in the situation where the option is demolition its consideration may have been appropriate. In the event the partial demolition works have resulted in damage which could only be remedied by substantial reconstruction which would not result is a meaningful retention of any limited heritage values that had been identified for the individual buildings.

· Can all the significant elements of the heritage item be kept and any new development be located elsewhere on the site?

This option was not possible given the form of development approved for the site. Some form of redevelopment maintaining the items may well have been possible if they were to have been retained but in the current circumstances such considerations are not feasible.

· Is demolition essential at this time or can it be postponed in case future circumstances make it retention and conservation more feasible?

Because of the current state of the buildings, total demolition is now the only course of action. To leave the buildings in their current state would create a public nuisance

· Has the advice of a heritage consultant/specialist been sought? Have the consultant's recommendations been implemented? If no, why not?

Initially there was no requirement for heritage consultation given the understanding that the buildings were no longer listed as heritage items and the granting of an approval for development that implied their demolition. The present consultation has been to determine the current condition and heritage value of the structures and to seek formal approval for demolition under the requirements of the LEP.

· The approved development of the site involves closure of the street and would result in the loss of any setting for the two remaining buildings at 13 and 21 Chapman Street. These buildings should be appropriately recorded prior to their demolition or relocation to another site.

The demolition works remove any evidence of the former grouping of small scale cottages which occupied this part of Strathfield. Recording of the buildings and their historic setting is no longer possible except in relation to No. 13 and No. 21.

The heritage significance of the surviving fabric of the items at No. 4, 8 and 12 is minimal and the full demolition will not have a further major impact on the heritage of the area. The significance of No. 13 and No.21 has been questioned and their demolition following archival recording will not have a significant impact in the circumstances of this amalgamated redevelopment site.

63 The “State Heritage Inventory” referred to in the Heritage Listings section of the Staas Report is in evidence and includes statements of the significance of the five heritage items the subject of these proceedings.

64 The Staas report refers to the four questions that “need” to be answered in a heritage impact statement when it is proposed to demolish a heritage item building, according to the Heritage Office Guidelines set out above at [39]. The applicant submitted that although the questions were referred to in the Staas Report, the report did not answer them and that, consequently, council failed to consider a “heritage impact statement”.

65 The respondents submitted that:

(a) the Staas Report was a document falling within the definition of a “ heritage impact statement ” in cl 6 of the Heritage LEP because it “ had been prepared ” in accordance with the Heritage Office Guideline. It stated that an assessment had been carried out in accordance with the provisions of the Heritage Office Guidelines. It posed and answered the four “ standard assessment questions ” in Table 1 of the Heritage Office Guidelines (set out at [40] above). It identified the significance in heritage values of the heritage listed houses (both individually and in their collective context). It identified and assessed the heritage impact of demolition of the houses. It identified the possibility of retention and reconstruction of the heritage items but concluded that the heritage value of the properties in their existing state was not such as to recommend against demolition. Even if it contained errors, it does not follow that it was not a heritage impact statement;
(b) the use of the past tense “ has been prepared” in paragraph (a) of the definition in cl 6 of the LEP is significant. If the Staas report was a heritage impact statement when it was prepared, then it could not lose that character when council chose not to place reliance on one section of it because it contained an error, nor did that choice mean that council did not take the report into consideration. In such circumstances the consent authority has taken the report into “ consideration ” in the legislative sense, but has reached a conclusion that a particular part of the report should not be relied upon to support the decision; and
(c) the Heritage Office Guidelines do not contain a strictly mandatory prescription as to the form and content of a heritage impact statement. They merely contain guidelines. Even where there are statutory prescriptions as to the form and content of a planning statement, there should be a flexible and practical approach to the question whether a statement satisfies the relevant criteria and the focus should be on substance rather than form: Guthega (above). The same principles should apply to identification of a heritage impact statement and, in the present case, with even greater force given that the criteria derive from guidelines.

66 It was erroneous in substance for Mr Staas to refer, repeatedly, in his report to the “development approval” that had been previously granted in 2003 for demolition of the heritage items as though it should be treated as valid. That is because council had conceded shortly prior to the Staas Report, in its pleading dated 25 October 2006 in the then part-heard 2003 proceedings in this Court, that that development consent was invalid. Consequently, the Court later formally declared it to be invalid and set it aside. The 2003 development consent was referred to at several critical points in the Staas Report. It was put forward as the reason for not considering the first of the four questions required to be addressed under the Heritage Office Guideline (Table 1), viz: Have all options for attention and adaptive re-use been explored? It was the basis of his answer to the second of those four questions – Can all of the significant elements of the heritage item be kept and any new development be located elsewhere on the site? – when he said “This option was not possible given the form of development approved for the site”. It was a significant element of his conclusion that: “The heritage items are of a limited level of significance to the wider Canada Bay Community and their value has been substantially diminished by the approval of development that involves closure of the street and a substantial change in their setting. This is further exacerbated by the partial demolition of the items on one side of the street as part of the approved development”.

114 Similarly, in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 Deane J said:

It has long been settled that the content of the requirements of procedural fairness may vary according to the particular circumstances of a case, including the nature and general functions of the entity required to observe them and the relationship between that entity and the person to whom procedural fairness must be accorded. Plainly, such variations may occur in the content of the requirement that a tribunal required to observe procedural fairness be not tainted by either the actuality or the appearance of disqualifying bias. Thus, acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.

115 Again, it has been said that the “application of the principle [of procedural fairness or natural justice] in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceeding and other kinds of decision making”: Ebner (above) at [4], a passage quoted with approval by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [99]. These principles were noted in Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [118] by Basten JA (with whom Beazley and Hodgson JJ agreed). In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [5] the High Court held unanimously (Gleeson CJ, Gaudron and Gummow JJ) that:

Re Refugee Review Tribunal; Ex parte Aala

Minister for Immigration and Multicultural Affairs v Jia

Johnson v Johnson

R v Watson; Ex parte Armstrong

Minister for Immigration and Multicultural Affairs v Jia

Ebner v Official Trustee

Kioa v West

116 An incisive analysis of the apprehended bias principle and confirmation of its application to the decisions of every public office-holder appear in the judgment of Kirby J (albeit in dissent on the facts) in Jia Legeng:

[134] Quite different considerations are raised when an allegation of imputed bias is made in this Court. An applicant in such a case is not concerned, as such, with the state of mind or attitude of the decision-maker. The focus of attention is on the decision itself and the manner in which it was apparently arrived at. The criteria are not subjective to the decision-maker. They are wholly objective. The issue raised is decided not by reference to a serious accusation of deliberate wrong-doing and misuse of office. It is judged by the much more readily established consideration of how the decision, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively.

[135] Many decisions of this Court have emphasised that imputed bias is determined by reference to a standard that is more easily made out. Such bias must still be firmly established [ R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553]. It is not enough that the reasonable bystander has a vague sense of unease or disquiet. The test for imputed bias, which has now been accepted by this Court, is expressed in terms of possibilities (might), rather than of the proof of a high probability [ R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; cf Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294] of bias inconsistent with the fair performance of public duties, that was formerly the accepted criterion.

117 Hayne J in Jia Legeng at 561 (and following) acknowledged the application of the principles of both actual bias and apprehended bias to that case and explored whether the fact that a decision is committed to a Minister affected their content and application. His Honour recognised that non-curial decision-makers may not be under the same constraints as a court. Consequently, “it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly”: at [192].

118 In this Court in Williams v Director-General of the Department of Environment and Conservation (2) [2004] NSWLEC 613 at [77] Lloyd J said: “The test for apprehended bias is whether a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to resolution of issues before them: see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294…The reasonable apprehension of a fair-minded and informed observer must be firmly established: The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553”. I agree. In McGovern v Ku-ring-gai Council [2007] NSWLEC 22 at [60] Pain J said that “The legal test of apprehension of bias is whether a fair-minded and fully informed observer would reasonably apprehend that there was bias by a decision-maker: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Kirby J at 549, referring to imputed bias, also Laws (Mason CJ, Brennan J) at 87”. With respect, I am unable to agree with that formulation of the legal test, in particular its use of the word “would”. The test for apprehended bias accepted by the High Court is expressed in terms of possibilities (might): eg Ebner at [6]; Jia Legeng at [135] per Kirby J.

119 Absence of bias, actual or apprehended, on the part of a decision-maker is one of the requirements of natural justice or procedural fairness: ReMinister for Immigration andMulticultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [43] per Gleeson CJ and Hayne J. When a statute confers on a public official or body power to do something which affects a person’s rights, interests or expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: ibid at [43], [126]. To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power where it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power: ibid at [30], [31]. These principles were considered and applied in Greyhound Racing NSW v Cessnock and District Agricultural Association [2006] NSWCA 333 at [117] – [123] by Basten JA (with whom Beazley and Hodgson JJA agreed). In considering development applications, a council “is bound by the common law rules of natural justice so far as they may be applicable to the situation created by the statutory provisions”; R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386 at 390 per King CJ.

120 If a council as a whole is affected by the appearance of prejudgment it will be disqualified from considering a matter (subject to the possible application of the doctrine of necessity). In Laws at 92 Deane J observed:

If the Tribunal as a whole is affected by the actuality or the appearance of such prejudgment, the Tribunal will, subject to the possible operation of the doctrine of necessity, be precluded from embarking upon that proposed inquiry. If the Tribunal as a whole is not so affected but some of its members are, those members will, subject again to the possible operation of the rule of necessity, be disqualified.

121 The content of the apprehended bias test in the case of a local council should take into account that councillors, unlike judicial officers, are elected individuals with political ties who are expected to “support particular views as to what is in the best interest of the community”: R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383 at 389 per Zeeman J. His Honour at 390 agreed generally with the observations of Sopinka J in Old St Boniface Resident’s Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 at 408 – 409:

In my opinion, the test that is consistent with the functions of a Municipal Cr and enables him or her to carry out the political and legislative duties entrusted to the Cr is one which requires that the objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that here is a prejudgment of the matter, in fact to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change.

122 This Canadian test of pre-judgment was also approved in Victoria in Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 at [51] by Vincent J and in Queensland in Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117 (Douglas J). It appears also to have been applied in this Court by Pain J in McGovern v Ku-ring-gai Council [2007] NSWLEC 22 at [89]. The Canadian test seems to me to be a test of actual bias, not apprehended bias, to similar effect to the test of actual bias stated in Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 - 533 [71] – [72] by Gleeson CJ and Gummow J who said: “The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.”

123 In the present case condition 17 of the 2000 contract required council to exercise its discretion in only one way. Such a contractual provision is invalid as a fetter on the exercise of the statutory discretion to grant a development consent. There is a duty to exercise a free and unhindered statutory discretion and such a contract cannot be enforced to prevent or hinder the exercise of the discretion: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54 at 74 – 76; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 17. However, that is a different question from whether such a contractual provision might give rise to apprehended bias in the mind of the fair-minded lay observer of the council’s subsequent grant of development consent such as to invalidate the consent. Here there has to be taken into account the principles discussed earlier that the hypothetical fair-minded lay observer is fully informed and is therefore assumed to know of such a contractual provision, but is not to be assumed to have a detailed knowledge of the law, for example concerning its invalidity.

124 In three similar cases to the present, in New Zealand, England and Victoria, it has been held that a council’s contractual commitment to exercise its planning powers in one way enlivened the apprehended bias rule: Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA); Steeples v Derbyshire County Council [1984] 3 All ER 468 (Webster J); and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (Vincent J).

125 In Lower Hutt the city council entered into a contract to lease city land that it owned to a developer. The contract included a clause requiring the council forthwith to take all steps necessary to stop certain streets on the land. The statutory procedure for the stopping of streets provided that it was for the council to put forward proposals for the streets to be stopped. If there were objections, the council was under a duty to “inquire into and dispose of the objections”, and as a result they might confirm or alter their proposals. Against the council’s decision, an appeal lay to a court. One of the objectors to the stop applied for a writ of prohibition to prevent the council from proceeding to consider the objections on the ground that the council had improperly fettered its discretion. The Court of appeal affirmed the decision of Wild CJ to grant a writ of prohibition. McCarthy P, delivering the judgment of the Court of Appeal, said at 548 - 549:

Ridge v Baldwin

…

126 His Honour went on to say at 549 - 550:

But this is not to say that council was required to observe all the standards applicable to courts of justice. In each case, what is required may vary with the circumstances and the function to be discharged.

127 In considering the application of these principles to the facts of the case, McCarthy P said at 550 – 551:

…In entering into this contract, in our view, the council placed themselves in a situation where there are valid grounds for believing that they are unable to discharge fairly the duty which the statute has placed upon them. In these circumstances the courts should act to prevent them performing the duty.

128 In the English case of Steeples (above) the defendant county council wished to develop an amusement park and car park and public convenience upon a large area of land which they owned. The county council entered into a contract with a private company whereby the company undertook to manage the proposed development of the amusement park. Under the contract the council bound itself to take all reasonable steps to obtain the grant of such planning permission, and agreed that if it should fail to use its best endeavours it would pay the developer a substantial sum by way of liquidated damages. Thereafter, a sub-committee of the council resolved to grant the necessary planning permission. A nearby land owner brought an action claiming a declaration that the resolution granting the planning permission was void. One of the grounds was that the decision granting planning permission was in breach of one of the rules of natural justice. That ground was upheld by Webster J who said at 491:

Was there a failure to comply with any of the requirements of natural justice?

The plaintiff contends that the decision…failed to comply with the requirements of natural justice in one respect only: namely that, primarily because of the terms of the contract made with [the developer], it was not seen to have been fairly made, in that -- and here I am both summarising and amplifying his contentions -- the public had reason to suspect that the decision was a mere formality, to suspect that its outcome had been prejudged or predetermined, to suspect at the very least that when the decision was made there was a strong bias in favour of the decision which was in fact made and to suspect accordingly that it was not a proper decision at all.

The plaintiff does not contend that the decision was in fact not fairly made. He did not seriously challenge the evidence of…, the chairman of the planning committee, which was to the effect that the meeting at which the decision was made was open to the public and that about fifty members of the public attended it, that his committee had considered the objections received, that in the morning before debating the matter they visited the site and spoke to people there, that he, [the chairman], thought that the contract with [the developer] was subject to the obtaining of planning permission, that the committee looked at the matter only from the planning point of view and that the committee could have turned down the county council's application. I accept the evidence of [the chairman] and I am satisfied that the decision was in fact fairly and properly made.

129 After taking into account the persuasive authority of the New Zealand case of Lower Hutt, his Honour formulated a test of apprehended bias which included the proposition that the court should look through the eyes of a reasonable person hearing all the relevant matters and knowing all the terms of the contract and decide whether the reasonable person would think that there was a real likelihood that the contract had a real material and significant effect on the decision . That test was not favoured in R v Sevenoaks District Council ex parte Terry [1985] 3 All ER 226 at 233 by Glidewell J who said that the correct test was whether the council had acted in such a way that it could not exercise a proper discretion. In this Court Cripps CJ in Blue Mountains City Council v Prospect County Council (1991) 74 LGRA 129 at 133 – 135 preferred the Sevenoaks test to the Staples test and the Lower Hutt test. The discussion of the appropriate test in these cases has, in my view, been overtaken and settled in Australia by the subsequent High Court cases and in England by R v Gough, as analysed earlier.

130 In R v Sevenoaks Glidewell J held that a council which had resolved to lease a site to a developer and which had then granted planning permission to the developer, was not biased because the formal lease agreement was not entered into until three weeks after the grant of planning permission. It appears that if the formal sale agreement had been entered into prior to the grant of planning permission, his Honour would have held that it was invalid for bias. His Honour cited with approval that part of the passage of McCarthy P in Lower Hutt City Council quoted above at [125].

131 In R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501 a county council entered into a contract with a developer for the exploitation of land which the council owned, and undertook to do their best to procure planning permission. Permission was to be granted by the district council controlled by the same political party as the county council and at a meeting of the party’s county group it was resolved that it would be the policy of the group to support the development. Woolf J held at 508 that the Steeples test did not apply in this case, as it was not alleged that that the district council had entered into any contract which precluded them from exercising an independent judgment or that any individual councillor had some personal financial interest in the development. In R v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 3 All ER 234 Stocker held that the apprehended bias test expressed in Steeples was not relevant where a planning authority’s decision was found or conceded to be fair. However, in a later English case, the court held that the principle that a person was disqualified from participation in a decision if there was a real danger that they would be influenced by a pecuniary or personal interest in the outcome was of general application in public law and was not limited to judicial or quasi judicial bodies: R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 at 325 (Sedley J).

132 In the Victorian case of Bycon (above) the council was under a statutory duty, before selling land it owned, to enter into a public participation process involving the publication of advertisements calling for submissions (including offers from others to purchase the same land) and the consideration of those submissions. The council entered into detailed negotiations with a prospective purchaser to sell to it land the council owned. The council also purchased adjacent land solely for the purpose of resale to the purchaser. On the eve of entering into contracts for the sale, the council was reminded of its obligation to undertake the public participation process, which it had apparently forgotten. Contracts were entered into - a fact which was kept secret -, subject to a condition that the public participation procedures were to be held and submissions considered. The advertisements were published. These produced several written submissions, including indications from other prospective purchasers who offered, or indicated that they would pay, sums substantially larger than the price agreed with the developer-purchaser. Vincent J held at [55] that at the time the council became aware that it had to comply with the duty to advertise and call for submissions it “was so committed to the development, that it is unrealistic to suggest that the subsequent formal compliance was anything other than mere ritual, designed to avoid a successful challenge being made to the proposed sale by the creation of an illusion that any submissions opposing the development had actually been seriously considered”. This appears to me to have been a finding of actual bias.

133 In R v Corporation of the City of Marion; Ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436 the Full Court made an order prohibiting a council from determining an application for a road closure on the ground of apprehended bias. The evidence, comprising letters and an agreement between the council and a developer, showed that the council had aligned itself with the developer and that the parties or the public would have every reason to think that the whole matter was predetermined and that they would not get a fair hearing in relation to their objections (at 444 per Zelling J with whom Jacobs J agreed).

134 As to the doctrine of necessity, in Laws (above) at 96 Deane J said:

I agree with Mason CJ and Brennan J that the rule of necessity is, in an appropriate case, applicable to a statutory administrative tribunal, as it is to a court, to prevent a failure of justice or a frustration of statutory provisions. That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies.

Laws

…Whatever the precise scope of the doctrine of necessity in the natural justice context, it seems contrary to all principles of fairness that, on the ground of necessity, a person should have to submit to a decision made by a person who has already prejudged the issue. Likewise, there seems much to be said for the view that, in the absence of a contrary statutory intention, the ground of necessity should not require a person to submit to a decision made or to be made by a person who is reasonably believed to have prejudged the issue.

135 It has been said that “The argument on necessity is very much an argument of last resort and courts apply the doctrine very sparingly”:R v Corporation of the City of Marion (1984) 37 SASR 436 per Zelling J (Jacobs J agreeing) at 445. In the present case the doctrine of necessity was not invoked.

Conclusion

136 This case is concerned with apprehended bias by a council as a collective body. It is concerned with the contractual surrender by a council of its statutory obligation to exercise an independent judgment. The statutory regime under which councils function may contemplate, and thus permit, less than arms length dealings between a council and a developer which would be impermissible between a judge and a litigant. However, in my opinion, there is nothing in the relevant statutory regime which contemplates that councils may contractually surrender their power of independent judgment to determine a development application.

137 Special condition 17 of the 2000 contract is tainted with the vice of the council purporting to bind itself contractually for valuable consideration that it will exercise its discretion to grant development consent in a specified manner decided by considerations other than its own conscientious judgment at the time as to what should be done. In accordance with the principles discussed earlier, the hypothetical fair-minded, properly informed lay observer is assumed to know of special condition 17 and of the continuum of conduct by council since the 2000 Contract consistent with honouring special condition 17. Council took no steps to avoid, as best it could, any reasonable apprehension of bias. All this would have a strong bearing on the mind of the hypothetical observer of the decision-making process relating to the 2006 Demolition DA.

138 The hypothetical observer is not to be assumed to have legal knowledge that special condition 17 was invalid as a fetter on the council’s discretion, nor that the doctrine of privity of contract might preclude it from being enforced at the suit of the applicant for the 2006 Demolition Application because it was not a party to the 2000 Contract. It is not significant that the 2000 Contract was not before council or referred to in relevant documentation during the process leading to the determination of the 2006 Demolition DA. If it matters, council had not lost sight of the 2000 contract. It was in evidence in the then part heard 2003 proceedings, and the applicant’s written submissions dated 25 October 2006 in those proceedings referred to special condition 17 and contended that it evidenced predetermination and bias.

139 The applicant submitted that without at least the following or other measures by council, such as delegation of the decision to an independent person, the hypothetical observer must retain doubts as to the fairness of the process:

140 I do not accept the submission. Some of the proposed measures are impossible or impracticable, others are unnecessary.

141 In my opinion, in order to allay the apprehension of predetermination by the hypothetical observer, it would be necessary and sufficient for council to expressly and publicly repudiate special condition 17 and expressly communicate its repudiation to the other party to the contract. Since that did not happen the hypothetical observer might reasonably apprehend that council might not bring an impartial mind to the resolution of the question it was required to decide. Consequently, in my opinion, the 2007 Demolition Consent is invalid.

Discretion

142 In addition to a declaration that the 2007 Development Consent is invalid and an order that it should be set aside, the applicant presses for declarations that demolition works carried out by the third and/or fourth respondents’ to the properties at 4, 6, 8 and 12 Chapman Street on or about 6 July 2006 were not authorised by a valid development consent and were carried out in breach of the EPA Act. A mandatory injunction against the third and fourth respondents compelling restoration was formerly sought but was abandoned.

143 I can see no discretionary reason why, as against council, relief should be refused.

144 The third and fourth respondents submitted that even if the Court finds that the 2007 Development Consent was invalid, the declaratory relief sought against them should be refused as a matter of discretion because:

(a) it is virtually inevitable that the heritage item houses, or what is left of them, will be pulled down at some stage and therefore there is no utility in making the declaration; and

(b) the making of declarations which fix upon them the stigma of breaching the statute and, by inference, of committing criminal offences, is unjustified in circumstances where the breach was retrospectively identified and where the work was done in reliance upon a current development consent upon which they were prima facie entitled to rely and did rely.

145 The demolition issue was formerly part of the 2003 proceedings but, by consent, was discontinued in those proceedings and resurrected in the present proceedings. On 2 May 2007 in the present proceedings the Court, by consent, noted that the third and fourth respondents conceded that, as a result of the making of the declaration of invalidity of the 2003 development consent in the 2003 proceedings, the demolition works carried out to 4, 6, 8 and 12 Chapman Street pursuant to a construction certificate dated 6 July 2006 was not authorised by any valid development consent. It is not possible to say what the ultimate fate of these heritage items will be. However, in the circumstances, I consider that it is appropriate to make a declaration to the effect of that concession. I decline, for the reasons identified in the third and fourth respondents’ second submission, to make a declaration that their demolition works were carried out in breach of the EPA Act.

146 I propose the following relief to give effect to my conclusions:

147 The matter will be listed before me at 4.00 pm on 4 September 2007 to make final orders. If any party wishes to contend that the relief should be other than that proposed above, it is to deliver short minutes of proposed orders to my chambers by 4 pm on the preceding day. Costs will be dealt with on that occasion if agreed or if argument is short, otherwise costs will be reserved. The exhibits may be returned.

05/10/2007 - Incorrect date referred in para 145 - Paragraph(s) 145

Citations

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537

Most Recent Citation

Cases Citing This Decision

16

McGovern v Ku-Ring-Gai Council [2008] NSWCA 209

Geber Super Pty Ltd v The Barossa Assessment Panel [2023] SASC 154

SZLAT v Minister for Immigration and Citizenship [2008] FCA 645

Cases Cited

47

Statutory Material Cited

3

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69

Actions

Download as PDF Download as Word Document

CITATION:	F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: F & D Bonaccorso Pty Ltd FIRST RESPONDENT: City of Canada Bay Council SECOND RESPONDENT: Arinson Pty Limited THIRD RESPONDENT: Omaya Holding Pty Limited FOURTH RESPONDENT: Omaya Investments Pty Limited
FILE NUMBER(S):	40171 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- Apprehended Bias - whether council development consent for demolition of houses including heritage listed items invalid - whether council failed to take into account mandatory considerations - principles concerning failure to consider mandatory considerations - whether council obliged, or failed, to consider heritage impact statement - principles concerning the content of heritage impact statements - whether council obliged, or failed, to consider its conservation policy, matters required under local environmental plan, public submissions, draft local environmental plan and draft development control plan - whether council apparently biased in its determination of development consent, in the sense it had predetermined the application, by reason of contracting with developer to accept and approve future application for demolition of properties including heritage items - principles concerning apprehended bias by councils
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 4, 5(a) and (c), 79C(1) Environmental Planning and Assessment Regulation 2000 cll 87, 88, 89, 91 Protection of the Environment Administration Act 1991 s 6(2)
CASES CITED:	Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372; Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237; Blue Mountains City Council v Prospect County Council (1991) 74 LGRA 129; Bycon Pty Ltd v Moira Shire Council [1998] VSC 25; Carstens v Pittwater Council (1999) 111 LGERA 1; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369; Franklins Ltd v Penrith City Council [1999] NSWCA 134; Gray v Minister for Planning (2006) 152 LGERA 258; Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Helman v Byron Shire Council (1995) 87 LGERA 349; Hill v Woollahra Municipal Council (2003) 127 LGERA 7; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43; Johnson v Johnson (2000) 201 CLR 488; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270; Lower Hutt City Council v Bank [1974] 1 NZLR 545; Manly Council v Hortis (2001) 113 LGERA 321; Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; McGovern v Ku-ring-gai Council [2007] NSWLEC 22; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; Old St Boniface Resident’s Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ; Parramatta City Council v Hale (1982) 47 LGRA 319; Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117; Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501; R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 ; R v Corporation of the City of Marion; ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436; R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386; R v Gough [1993] AC 646; R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304; R v Sevenoaks District Council ex parte Terry [1985] 3 All ER 226; R v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 3 All ER 234; R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Steeples v Derbyshire County Council [1984] 3 All ER 468; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Weal v Bathurst City Council (2000) 111 LGERA 181; Williams v Director-General of the Department of Environment and Conservation (2) [2004] NSWLEC 613; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	26, 27, 29 June and 5, 24 July 2007
DATE OF JUDGMENT:	31 August 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti and Mr J L Doyle SOLICITORS: Thomson Playford FIRST RESPONDENT: Mr J E Griffiths SC and Mr S J Free SOLICITORS: Maddocks THIRD AND FOURTH RESPONDENTS: Mr J A Ayling SC SOLICITORS: Gadens