Kidd v Resource Management and Planning Appeal Tribunal

[2011] TASSC 38

[2011] TASSC 38

COURT:  SUPREME COURT OF TASMANIA

CITATION:     Kidd v Resource Management and Planning Appeal Tribunal [2011] TASSC 38

PARTIES:  KIDD, Madeline
  v
  RESOURCE MANAGEMENT AND PLANNING
  APPEAL TRIBUNAL,
  CITTA PROPERTY GROUP PTY LTD,
  TASMANIAN HERITAGE COUNCIL,
  SULLIVANS COVE WATERFRONT AUTHORITY

FILE NO/S:  177/2011
JUDGMENT

APPEALED FROM:                Kidd v Sullivans Cove Waterfront Authority;

Kidd v Tasmanian Heritage Council [2011] TASRMPAT 12

DELIVERED ON:  29 July 2011
HEARING DATE:  19, 20 May 2011
JUDGMENT OF:  Porter J

CATCHWORDS:

Environment and Planning – Building Control – Council consent and approval – Matters for consideration by Council – Heritage protection – Building listed on register of places of historic cultural heritage significance – Approval of Heritage Council or planning authority required for works which may affect significance – Approval only to be given if satisfied no prudent and feasible alternative to carrying out the works – Appeal Tribunal limited its inquiry to the context of the proposal – Whether error of law – Correct test.

Historic Cultural Heritage Act 1995 (Tas), ss39, 41.

Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21; Friends of Merri Creek Inc v Meakins (2003) 131 FCR 175; Re The Hon G D Kierath, Minister for Heritage; ex parte City of Fremantle [2000] WASCA 156, considered.
Aust Dig Environment and Planning [306]

Environment and Planning – Heritage conservation – Powers and duties of authorities – Building listed on register of places of historic cultural heritage significance – Approval of Heritage Council or planning authority required for works which may affect significance – Approval only to be given if satisfied no prudent and feasible alternative to carrying out the works – Appeal Tribunal limited its inquiry to the context of the proposal – Whether error of law – Correct test.

Historic Cultural Heritage Act 1995 (Tas), ss39, 41.

Aust Dig Environment and Planning [446]

Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Heritage – Demolition of buildings listed in planning scheme as places of cultural significance – Whether failure by Appeal Tribunal to consider and determine all relevant aspects of planning scheme.

Aust Dig Environment and Planning [115]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine and E Judd
             First respondent:  (Submitted to the Court's jurisdiction)
             Second respondent:  S R Morris QC and D R Armstrong
             Third and Fourth Respondents:      P Turner
Solicitors:
             Appellant:  Shaun McElwaine & Associates
             First respondent:  Director of Public Prosecutions
             Second respondent:  Don Armstrong
             Third and Fourth Respondents:      Director of Public Prosecutions

Judgment Number:  [2011] TASSC 38
Number of paragraphs:  82

Serial No 38/2011
File No 177/2011

MADELINE KIDD v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, CITTA PROPERTY GROUP PTY LTD, TASMANIAN HERITAGE COUNCIL, SULLIVANS COVE WATERFRONT AUTHORITY

REASONS FOR JUDGMENT  PORTER J

29 July 2011

Introduction

1. This appeal concerns the fate of two buildings in Hobart; 2 – 4 Salamanca Place and 10 Murray Street, both of which are in the Sullivans Cove area. Decisions have been made which permit their demolition. 2 – 4 Salamanca Place is listed on the Tasmanian Heritage Register maintained under s15 of the Historic Cultural Heritage Act 1995 ("the HCHA"), but 10 Murray Street is not. Both buildings are listed as places of cultural significance in the Sullivans Cove Planning Scheme 1997 ("the Scheme"). The demolition of the two buildings is part of a proposal for redevelopment of a much wider area in which the buildings stand. The area to be redeveloped has, in the process, become known as Parliament Square.

1. Initial decisions were made by the Sullivans Cove Waterfront Authority to grant a permit for the development, an integral part of which, as I have said, is the demolition of both buildings, and by the Tasmanian Heritage Council ("the Council") to approve the demolition of 2 – 4 Salamanca Place.  That approval from the Council was required because of the building's listing.  There were a number of appeals to the Resource Management and Planning Appeal Tribunal in respect of those two decisions.  Exercising the original powers and functions of the original decision-makers, the Tribunal dismissed the appeals and affirmed both decisions.  The appeal to this Court is about whether the Tribunal made errors of law in its determination of the appeals made to it.  I am not, of course, concerned with the merits of any aspect of the proposal. 

1. The appellant in these proceedings is a person who objected to the original applications, and was an appellant in the proceedings before the Tribunal. She is a person interested in the preservation of the two buildings. The respondent Citta Property Group Pty Ltd ("Citta"), is the developer. The Council appeared through counsel to advance a view of the particular section of the HCHA under which the decision to demolish 2 – 4 Salamanca Place was made.

Background

1. A more detailed outline of the development proposal and its consequences was set out by the Tribunal in its reasons.  As it seems necessary, and as there is agreement that it accurately describes the situation, I will set it out in its entirety: 

"1   These appeals are concerned with a proposal to extensively redevelop an entire city block situated in the very heart of Hobart. The Proponent wishes to undertake the redevelopment of what has recently become known as 'Parliament Square', an area immediately behind Parliament House at Sullivans Cove and bounded by Salamanca Place, Davey and Murray Streets. Opposite, and across Murray Street to the north of the site is the State Government Executive Building. To the south, across Salamanca Place is St David's Park and the Supreme Court. Some of the buildings in Parliament Square such as the old Government Printing Office at 2-4 Salamanca Place and some of the buildings fronting Murray and Davey Streets are listed on the Tasmanian Heritage Register established under the Historic Cultural Heritage Act 1995. Others – most significantly 10 Murray Street – are not listed in that Register but are listed in the Schedule of the Sullivans Cove Planning Scheme 1997 dealing with the conservation of Cultural Heritage values. It is beyond argument that Parliament House and its gardens along with Salamanca Place are areas of high heritage value.

2     The proposal involves the complete demolition of several buildings. Two have already been mentioned - 10 Murray Street and 2-4 Salamanca Place. The others to be demolished are 6 Salamanca Place and the so-called 'red brick' building situated to the rear of 36 and 34W Davey Street, and more or less in the centre of Parliament Square. In addition partial demolition of the Parliament House annexe (adjoining and immediately to the rear of Parliament House) and 12 Murray Street form part of the proposal.

3     After demolition a significant construction undertaking is proposed. A new office building, some six storeys in height with basement carparking and flanked on either side by five storey wings is proposed. New public open spaces variously named 'St Marys Green', 'St Marys Garden', 'The Square' and 'Harbourview Terrace' are also proposed. These are to include an amphitheatre-type forecourt area with viewing platforms, outside seating and a paved outdoor dining area. The public space will also include a very large removable TV screen to allow for the televising of (presumably) significant sporting and cultural events. Although there was no direct evidence about this matter it would seem that that it is to be in the nature of the big screen at Federation Square in central Melbourne with which the Tribunal and, indeed, many people are familiar.

4     The proposal does not stop there. Several of the buildings which enjoy heritage protection including the Davey Street buildings are to be renovated and adaptively reused. 34 West and 36 Davey Street (the old St Marys Hospital and Health Department buildings) are to be conserved and the original street entrances reinstated so as to allow public access through to the central public open space area.

5     Associated with all this is to be a two level basement car park dedicated for the use of the people who work upon the site, ie, Members of Parliament and public servants. Importantly, storage is to be provided for some forty bicycles in the parking area.

6     The proposal is clearly designed to create a multi-use environment including government office spaces, bars, cafes, art galleries, restaurants and the like. It is self-evidently a significant proposal in terms of the City of Hobart and the State of Tasmania. The site is obviously a site of fundamental sensitivity and importance in the same terms. It contains an eclectic mix of structures. The oldest building upon it, 36 Davey Street (the St Marys Hospital site) dates from before 1850 and has been vacant for a number of years. Next to it at 34 West Davey Street is a four storey sandstone building which dates from the mid 1880s. It too has been vacant for many years. The 'red brick' building in the middle of the site and earmarked for complete demolition may date from as early as 1862. No 12 Murray Street is a three storey sandstone office building dating from around 1922. No 24 Davey Street, on the corner of Davey and Murray Streets, (and often more commonly described as the old Health Department Building), is a six storey office building dating from around 1930.

7     2-4 Salamanca Place (the old Government Printing Office) is a five storey building which until relatively recently housed the Government Printing Office. Although designed prior to World War II, the construction of that building was delayed by the War and it was not commenced until the early 1950s - being completed in around 1955. It has been empty since 2006

8     Next door is 6 Salamanca Place which was once the PABX building. It dates from the 1970s (roughly the same age as the Supreme Court complex which is across the road). Obviously modern technology has made PABX redundant. It too has been vacant for a number of years.

9     The focus of much, but not all, of the attention of these appeals is the 12 storey above ground State Government office block which was completed in 1969 at 10 Murray Street. As has already been noted it is not listed in the Tasmanian Heritage Register although an application was apparently made to the Heritage Council for it to be listed some years ago. That application seems never to have been dealt with.

10   Because some of the properties in the development proposal are listed in the Tasmanian Heritage Register, a two layer system of planning approval operates and must be observed. In no particular order it is necessary to obtain planning approval from the Planning Authority, in this case the Sullivans Cove Waterfront Authority, pursuant to the provisions of the Land Use Planning and Approvals Act 1993 (the 'Land Use Act') and the Sullivans Cove Planning Scheme 1997 (the 'Scheme'). In addition, where appropriate, it is necessary also to obtain the approval of the Heritage Council under the provisions of the Historic Cultural Heritage Act 1995. The appeals in relation to this matter were concerned with both regulatory schemes.

11   The Proponent, Citta Property Group, applied to both the Planning Authority and the Heritage Council for the appropriate approvals to enable the proposal to proceed. Both the Authority and the Heritage Council issued the necessary planning permit and works approval ostensibly allowing the proposal to proceed. These decisions gave rise to a total of nine separate appeals. The first of those appeals brought by Ms Briony Kidd (Nos 66/10 P and 67/10 H) were dismissed by the Tribunal, the Tribunal having concluded that Ms Briony Kidd had no standing to bring those appeals having failed to make the necessary enabling representations to both the Authority and the Heritage Council."

1. The Tribunal noted that in substance it was concerned with "planning appeals" which arose from the decision of the Authority to grant planning permits, and "heritage appeals", which arose from the decision of the Heritage Council to issue a works approval.

The provisions of the Act and of the Scheme

1. Critical in the determinations of the Tribunal, and in relation to the appeal to this Court, are a number of provisions of the HCHA and of the Scheme. It is convenient if I set them out now.

The provisions of the HCHA

"32 Application for approval to carry out works

(1)    A person must not carry out any works in relation to a registered place or a place within a heritage area which may affect the historic cultural heritage significance of the place unless the works are approved by the Heritage Council.

Penalty:

In the case of —  

(a)a corporate body, a fine not exceeding 10 000 penalty units; or

(b)an individual, a fine not exceeding 5 000 penalty units.

(2)    A person may apply for approval to carry out works by lodging an application with the appropriate planning authority.

…

33  Dealing with application by planning authority

(1)    The planning authority —  

(a)may deal with a works application if it has a delegated power from the Heritage Council to do so; or

(b)must refer the works application to the Heritage Council if it does not have that delegated power.

…

39Approval of works application by Heritage Council

(1)    After considering any submissions and consulting with any relevant person, body, authority, department or agency in respect of a works application referred to it, the Heritage Council may —  

(a)approve the works application subject to any condition or restriction; or

(b)refuse to approve the works application.

(2)    …

…

41Approval of certain works

The Heritage Council or planning authority may only approve a works application in respect of works which are likely to destroy or reduce the historic cultural heritage significance of a registered place or a place within a heritage area if satisfied that there is no prudent and feasible alternative to carrying out the works.

…

90Matters to take into account

In exercising any powers or performing any functions under this Act in relation to a place, a person must take into account —  

(a)the retention of the historic cultural heritage significance of the place; and

(b)the objectives of the resource management and planning system and the planning process set out in Schedule 1 to the Land Use Planning and Approvals Act 1993; and

(c)any relevant provisions of the Building Act 2000."

1. In s3, "works" is defined as including "any development".  "Development" is defined as including the construction, exterior alteration or exterior decoration of a building, and the demolition or removal of a building. 

The provisions of the Scheme

1. The area governed by the Scheme is a broad area extending from Battery Point and Sandy Bay Road to the south, to Regatta Point to the north, and from the eastern edge of the CBD to the west, with the River Derwent as the eastern boundary.  That planning area is divided into "Activity Areas".  The relevant Activity Area is described as the "Sullivans Cove 'Mixed Use' area".  Clause 16 which creates this Activity Area states that it "comprises the land stretching from Battery Point across the central Cove area to the north side of Hunter Street, and beyond to the Liverpool Street extension."  The area is described as "Hobart's major tourist destination and has a readily identifiable image as a focus for cultural activities and supports a wide range of other uses which contribute to its character and vitality". 

1. Clause 6 deals with "A Preferred Future For The Cove".  Clause 6.2 speaks of the Cove's unique historic cultural heritage which "should be retained, for once lost, it cannot be recreated."  Strategic planning principles are set out in cl 7.  Clause 7.3.2 states that a principle relevant to "Cultural Heritage", is to facilitate use and development which is compatible with conservation of the Cove's cultural heritage values.  Clause 16.4 specifies that a permit is required to undertake any development of land unless it is otherwise specifically exempt, and that all development of land must satisfy the relevant provisions within the schedules of the Scheme.  Part E of the Scheme contains the schedules.  Clause 22 (Schedule 1) and cl 28 (Schedule 7) are the schedules which require consideration.  They deal respectively with conservation of cultural heritage values, and demolition.  The relevant parts of those schedules are as follows:

"22 SCHEDULE 1 – CONSERVATION OF CULTURAL HERITAGE VALUES

22.1Introduction

Conservation of the cultural heritage values of Sullivans Cove is the primary objective of the Scheme. Where there is an apparent conflict with other objectives, the conservation of cultural heritage values takes precedence.

This schedule applies to conservation of the cultural heritage values of identified places of cultural significance, including spaces, buildings and objects, and conservation of patterns of continuing or historic use. It also applies to the conservation of archaeologically sensitive sites and the conservation of a recognisable historic character in the areas where authentic historic fabric and spaces remain.

22.2    Objectives

•   To provide the mechanisms to allow the conservation of heritage values.

•   To provide an incentive for ‘building or works’ to be carried out in a manner which is compatible with conservation of cultural heritage values.

•   To ensure that the recognisable historic character of Sullivans Cove is not compromised by new development which overwhelms the places of cultural significance, or, by new development which reduces the apparent authenticity of the historic places by mimicking historic forms.

•   To encourage new development to be recognisable as new, but not individually prominent. Such development must reflect a 'good neighbour' relationship to places of identified cultural value.

22.3    Definitions

…

Cultural Significance  Cultural significance is defined as historic, scientific, aesthetic or social value for past, present and future generations. It may include archaeological values, architectural values and values as a record of various aspects of history. It is synonymous with the term heritage value.

…

22.4Conservation of Places of Cultural Significance

…

22.4.4'Permitted' 'Building or Works'

...

22.4.5'Discretionary' 'Building or Works'

'Building or works' on places of cultural significance which cannot satisfy the 'deemed to comply' provisions of Clause 22.4.4 may be approved at the discretion of the Planning Authority.

The following criteria must be taken into consideration in the assessment of all proposals to undertake 'building or works' on places of cultural significance:

·   'Building or works' must complement and contribute to the cultural significance, character and appearance of the place and its setting;

·   'Building or works' must be in compliance with the conservation strategy of an approved Conservation Plan, where required and/or provided;

…

…

28SCHEDULE 7 – DEMOLITION

28.1Introduction

'Demolition' refers to the demolition or partial demolition of any building, or works on land.

It is important that buildings, and works on land within the Cove are not demolished without due assessment of the implications of such demolition on the cultural heritage and urban character of the Cove.

Additionally, it is important that prior to approval being granted for demolition of buildings within the Cove, approval is granted for the construction of replacement buildings. This approach will avoid the creation of additional 'lost space' within the Cove.

28.2Objectives

The protection and promotion of the Cultural Heritage and Urban Character of the Cove is of primary concern in the consideration of proposals to demolish the built fabric of the Cove.

28.3  Scope

28.3.1A permit is required for all demolition in the Cove. All such demolition is 'discretionary'.

…

28.5Guidelines for Development Control

The demolition of any building, or works on land shall not be 'permitted' unless; a replacement development has been approved, or such demolition is required by statutory order or is authorised by the Building Surveyor as essential to public safety.

Any application for demolition:

(a)  Shall be refused if the building is included as a cultural heritage place in Table 1 of the Conservation of Cultural Heritage Values Schedule of this Scheme, unless;

(i)The demolition is approved as part of a Conservation Plan approved by the Planning Authority or otherwise in its discretion under the Conservation of Cultural Heritage Values Schedule of this Scheme;

(ii)The building clearly detracts from the cultural values or significance of the place; or

(iii)There are overriding environmental, economic considerations in terms of the building or practical considerations for its removal, either wholly or in part.

(b)  May be refused if in the opinion of the Planning Authority the building contributes to the cultural heritage or urban character of the Activity Area and the building is capable of continued beneficial use.

28.6Matters to be Considered

In considering any proposal for demolition, the Planning Authority shall give regard to the following matters:

·    The impact of the proposed demolition on the character of the Activity Area;

·    The impact of the proposed demolition on the cultural heritage values of the Cove;

·    The need to avoid creation of vacant sites and 'lost space' in the Cove."

1. There is one aspect of these provisions of the Scheme which I need to mention.  The proceedings before both the Tribunal and me proceeded on the basis that cl 28.5(a) applied to both buildings.  Clause 22.4.1 states that the controls of the clause apply to the carrying out of building or works on places of cultural significance identified in Table 1 to that Schedule.  Table 1 in fact refers to "Places of Cultural Significance".  Both buildings are on that list.  However, as can be seen from the above, cl 28.5(a) refers to buildings included "as a cultural heritage place in Table 1" of the particular Schedule.  That is, cl 22.4 and Table 1 include the buildings as places of cultural significance, and not as a "cultural heritage place".  "Cultural significance" is defined in cl 22, whilst "cultural heritage" is not.  Read literally, cl 28.5(a) does not apply to the two buildings.  However, as there is no provision in the list for "Cultural Heritage Places", it may be reasonable to assume that the reference in cl 28.5(a) is intended to be a reference to places of cultural significance as referred to in cl 22.4.1.  Certainly, that seems to be the unstated assumption upon which everybody has been proceeding.

The Tribunal's decision

1. A summary of the relevant parts of the Tribunal's decision is as follows.  The Tribunal:

· considered s41 of the HCHA, and in particular the meaning of the phrase "no prudent and feasible alternative to carrying out the works";

· said that whilst s41 clearly restricts the power of the Council or a planning authority to approve works which are likely to destroy or reduce the historic cultural significance of a registered place, if it is satisfied that there is no prudent and feasible alternative, the phrase must be read "as concerned with the carrying out of the works in the context of the proposal";

·     went on to consider the issue of prudent and feasible to the demolition of 2 – 4 Salamanca Place in the context of the proposal, concluding that in the context of the "grand design, which consists of many inter-related parts" there seemed to be no prudent and feasible alternative to the demolition of the building;

·     went on to consider the application of cl 28.5(a), explicitly so in the case of 10 Murray Street;

·     in this process, considered each of the sub-clauses in cl 28.5(a), but made no express mention of cl 28.5(b);

·     concluded that on the evidence, and having regard to the satisfaction of each of cl 28.5(a)(i) and (iii), there was no realistic alternative to the total removal of 10 Murray Street;

·     dealt with specific grounds of appeal which related to issues said to arise from the proposal, other than those relating to the demolition of the two buildings;

·     concluded that "on balance, and on the basis of the evidence before it" that the proposal was one which met the requirements of the Scheme, and that the appropriate decision was to affirm the decisions of the Authority and also that of the Heritage Council.

The appeal to this Court

1. The grounds of appeal assert that the Tribunal:

"(a)Erred in law in its construction of section 41 of the Historic Cultural Heritage Act 1995 and then in:

(i)   its application of that section to the facts as found by it; and/or

(ii)   its failure to find facts necessary in order to apply the section according to law;

(b)[Abandoned]

(c)Erred in law in that it overlooked the application of clause 28 of the planning scheme to the listed place at 2 Salamanca Place and thereby failed to:

(i)   make findings of fact relevant to the exercise of clause 28 of the planning scheme to the proposal to demolish 2 Salamanca Place; and

(ii)   failed to exercise the discretion which it was required to do by clause 28.5(a) of the planning scheme.

(d)Erred in law in its construction of clause 28 of the planning scheme and then in the application of that clause to the facts as found by it in that it proceeded on the basis that the proper question to be determined by it was whether the retention of the listed place known as 10 Murray Street is mandated by the planning scheme when, upon a proper construction of the provisions of the planning scheme, the issue which it should have posed for itself and answered is whether it was appropriate to grant a planning permit for, inter alia, the demolition of that place;

(e)[Abandoned]

(f)Erred in law in its interpretation of the provisions of clauses 22 and 28 of the Planning Scheme in that it failed to recognize, and then apply, a discretion to not approve the demolition of the listed place known as 10 Murray Street even if the requirements of clause 28.5(a) were satisfied, by application of clause 28.5(b); and

(g)Erred in law in its interpretation of clause 28.5(a)(iii) of the planning scheme in that it failed to determine, on the facts as found by it, as to whether there were or were not overriding environmental and economic considerations, being considerations more important that the cultural heritage significance of the place."

1. The issues raised by these grounds can be summarised as follows:

· how the Tribunal construed the HCHA, s41, and whether its interpretation was wrong in law;

· whether there was an error of law in the application of s41 to the facts;

·     whether the Tribunal failed to resolve issues before it, in failing to consider the application of cl 28 of the Scheme to 2 – 4 Salamanca Place;

·     whether the Tribunal posed for itself the wrong test under cl 28 in respect of 10 Murray Street by posing the question of "whether [its retention] … is mandated by the planning scheme …";

·     whether the Tribunal was wrong in law in that it failed to consider whether or not the requirements of cl 28.5(b) were satisfied in respect of 10 Murray Street;

·     whether the Tribunal was wrong in law in that it did not address the requirements of cl 28.5(a)(iii) in relation to 10 Murray Street, in that it made no determination as to whether or not there were overriding environmental and economic considerations more important than the cultural heritage significance of the place.

The approach to the grounds of appeal

1. Consideration of the grounds of appeal almost exclusively involves a process of interpretation and construction of the Tribunal's reasons.  Issues arise as to the proper construction of what the Tribunal said, what it intended to say, how some issues were dealt with, and whether some were in fact dealt with at all.  Citta makes the general submission that the appellant's approach seems to depend on a rigid, rather than a flexible approach to the reasons.  It relies on statements by Kirby J in Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64], and the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In Roncevich Kirby J said that a court should "avoid overly pernickety examination of the reasons" of an administrative tribunal.  

1. In Wu Shan Liang, Brennan CJ, Toohey, McHugh and Gummow JJ quoted with approval statements made in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Their Honours said "[In Pozzolanic] it was said that a court should not be 'concerned with looseness in the language … nor with unhappy phrasing' of the reasons of an administrative decision-maker, [and that] 'the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'".  Their Honours went on to confirm that such reasons should not "be scrutinised upon over-zealous judicial review to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". 

1. In Wu Shan Liang, Kirby J, at 291, also addressed what should guide judges conducting reviews, and appellate courts exercising a supervisory jurisdiction. His Honour said that "the reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law." His Honour went to say that "this admonition has particular application to the review of decisions which are committed to lay decision-makers, ie tribunals, administrators and others." These statements of Kirby J were endorsed by the Full Court in Attorney-General (Tas) v Cameron [2007] TASSC 22 at [9]. I will, of course, approach the task with those principles in mind. However, I should observe that in the case of the Resource Management and Planning Appeal Tribunal, its Chair is, by statute, a legal practitioner of not less five years' standing. The Chairman presided in this case.

1. Citta raised a further aspect of the approach to the appeal.  As to the appropriate "level of scrutiny" I was referred to the following remarks of Marks J in Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157 at 163:

"Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness."

1. I am unsure how these comments are said to impact on the issues in this case.  The comments of Marks J were directed towards the need for a planning authority to take a flexible approach to an application to ensure that it is not disposed of by a rigid application of the law, when notice to an applicant about an issue may lead to amendment or agreement, and the determination of the true substance of the proposal on its merits: Kain v Glamorgan Spring Bay Council (1996) 90 LGERA 326 at 336 – 337. The statute with which Marks J was dealing specifically directed against "legalistic and technical diversion" – [1982] VR at 162 – and this is noted in a sentence immediately preceding the words quoted.

1. I can accept that in the area of planning law, there is an acknowledged need to make every endeavour to deal with the substance of an application. However, in part, this appeal concerns the construction of provisions of the HCHA, and hence the issue of the conservation and protection of Tasmania's historic cultural heritage. It also concerns whether the Tribunal properly applied the law to the tasks undertaken by it. As to the first part, the ordinary principles of statutory construction apply. Although an interpretation of planning provisions which would promote unwarranted technicality over substantive justice should be avoided, obvious limits must be acknowledged and respected.

Ground (a) – the HCHA, s41

1. The issue is the Tribunal's interpretation and application of the HCHA, s41. Much of the argument as to this ground was centred on what Finkelstein J said in Friends of Merri Creek Inc v Meakins (2003) 131 FCR 175, and on how the Tribunal approached the construction of s41 in light of his Honour's comments. His Honour was considering a challenge by a community organisation to Federal funding for the construction of a highway realignment through an area of sensitive grasslands which were listed in the Register of the national estate under the (now repealed) Australian Heritage Commission Act 1975 (Cth). Section 30(1) of that Act required each Commonwealth Minister to give all such directions and do all such things as can be given or done for ensuring that no action is taken that adversely affects a place that is in the Register unless satisfied "that there is no feasible and prudent alternative to the taking of that action, and that all measures that can reasonably be taken to minimise the adverse effect will be taken and shall not himself take such action unless he is so satisfied." 

1. I will out set out the passages of the judgment in Merri Creek in which his Honour considered the meaning of "feasible and prudent alternative", and which were considered by the Tribunal:

"50The Supreme Court of the United States considered s 4(f) in Citizens to Preserve Overton Park Inc v Volpe (1971) 401 US 402, a decision which is best known for its establishment of standards of judicial review governing administrative action. In that regard, the Supreme Court held that the reviewing court must conduct a substantial three-step inquiry. First, the court must determine whether the decision-maker acted within the scope of his or her authority. Second, the court must find that the decision-maker's choice was not 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law'. Third, the court must find that the decision-maker followed the necessary procedural requirements. For present purposes, however, it is necessary only to consider the Supreme Court's consideration of the meaning of a 'feasible and prudent alternative' in s 4(f). The respondent argued that this language afforded the Secretary a wide discretion to consider a number of factors, including the detriment to parklands, in reaching a decision. The Supreme Court disagreed. The opinion of the court was delivered by Marshall J. He said that the words 'no feasible and prudent alternative' required the Secretary to give 'paramount importance' to protection of parkland, unless there were levels of cost or community disruption of 'extraordinary magnitude', or other 'truly unusual' factors (at 412-413). The word 'feasible' meant, 'as a matter of sound engineering it would not be feasible to build the highway along any other route' (at 411). Interestingly, the word 'prudent' was not interpreted to indicate that a balancing of competing interests should be undertaken such that the resulting destruction of parkland should be weighed against the cost of other routes, safety considerations, and other factors. On the contrary, Marshall J observed (at 411-413):

'It is obvious that in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible ... there will always be a smaller outlay required from the public purse when parklands is used since the public already owns the land ... And since people do not live or work in parks, if a highway is built on parkland no one will have to leave his home or give up his business. Such factors are common to substantially all highway construction. Thus, if Congress intended these factors to be on an equal footing with preservation of parkland there would have been no need for the statutes.

Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary. But the very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.'

(Citations omitted.)

51In other words, the cost, directness of route, and other such factors do not account for a more prudent alternative. Rather, there must exist 'truly unusual factors', or the cost or community disruption resulting from alternative routes must have reached 'extraordinary magnitudes' such that the alternatives present 'unique problems'. See also Stop H-3 Association v Dale (1984) 740 F (2d) 1442 at 1451-1452 (9th Circ 1984), which held that an alternate route costing an additional $42 million and requiring dislocation of one church, four businesses and 31 residences was a cost or community disruption of extraordinary magnitude); Louisiana Environmental Society Inc v Coleman (1976) 537 F (2d) 79 at 87, n 6 (5th Circ 1976) where the alternate route requiring the displacement of 377 families, 1,508 persons, 21 businesses and two churches was not of extraordinary magnitude; Coalition for Responsible Regional Development v Brinegar (1975) 518 F (2d) 522 at 526 (4th Circ 1975) finding the State's inability to finance an alternate route with proceeds from sale of bonds was not a unique problem); Association Concerned About Tomorrow Inc v Dale (1935) 610 F Supp 1101 at 1116-1117 (DC Tex 1985) finding alternate route requiring dislocation of elementary school not imprudent. Other recent cases support the option of not undertaking the project at all: for example DC Federation of Civic Associations v Volpe (1971) 459 F (2d) 1231 at 1238-1239 (DC Circ 1971); Stop H-3 Association v Dale (1984) 740 F (2d) 1442 at 1451-1452, n 17 (9th Circ 1984)."

1. At [54], Finkelstein J said that the object of s30 of the Australian Heritage Commission Act was to ensure that "in the future Australia's heritage would be given paramount consideration in government decision-making processes".  His Honour continued:

"The section was designed to ensure that decision-makers are informed about the environmental consequences of their proposed actions and are made aware of feasible and prudent alternatives in order for them to be able to satisfy themselves that they have no effective choice but to take the proposed action."

1. His Honour noted that this view of the provision has not always prevailed but is supported by the judgment of Wilcox J in Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21. The applicant was a body interested in the preservation of the particular area in question. That area had been earmarked for development by a foreign owned corporation. The acquisition of the interest in the land was subject to the approval of the Foreign Investment Review Board. The Treasurer could make an order prohibiting the acquisition. He did so, but following an amended proposal and acting on the Board's advice, revoked the order of prohibition. The application was directed to that decision. Wilcox J reviewed a number of the American cases, including Citizens to Preserve Overton Park Inc v Volpe at 56, his Honour said that the Board, whilst noting that is was necessary for the Treasurer to be satisfied that there are no feasible and prudent alternatives, failed to grasp the significance of the requirement. "Yet, although no investigation [as to whether there were feasible and prudent alternatives to approval] had occurred or was proposed, the Board declined to recommend that course. Instead, it recommended an approval, … In doing so, it treated s 30(1) … as merely introducing a Heritage aspect into the overall decision, an aspect capable of being negotiated … and overborne, if the Treasurer saw fit, by economic considerations."

1. As to the role of economic considerations, his Honour at 57 said that "mere economic considerations cannot determine what is feasible and prudent" in a statutory context such as the one under consideration. "If s30(1) was so interpreted it would fail of its purpose. The most economically advantageous proposal would prevail". At 58 Wilcox J said that "As the American cases demonstrate, and they only apply the words 'feasible' and 'prudent' in their ordinary meaning, a proposal ought not to be regarded as infeasible or imprudent simply because it is more costly or less profitable". On the question of alternatives, his Honour, also at 58, pointed out that in that case the Treasurer knew that the Board had not made any more general inquiry about alternatives, perhaps involving a different proposal or form of development, or leaving the site as it was. He continued:

"Except, perhaps, in a case where a place is in such a condition as to be dangerous, or to constitute a nuisance, to others, the 'do nothing' option might ordinarily be thought to be a feasible and prudent alternative to action which will adversely affect a place entered on the national estate register. But this was not considered."

1. Further, at 62 his Honour said:

"In my judgment, s 30 evinces an intention to ensure that actions by Commonwealth officers do not adversely affect places entered on the register of the national estate unless a positive conclusion is reached by the responsible Minister that such affectation is, in practical terms, inescapable and all reasonable minimisation measures are taken. As I have already suggested, this objective is central to the statute, there being little point in compiling a register unless places entered in it are protected, at least from adverse Commonwealth actions."[1]

[1] The applicant was mostly successful but appealed: (1990) 25 FCR 1 (Lockhart, Morling and Pincus JJ). The respondents cross-appealed. The appeal was dismissed and the cross-appeals were upheld on the basis that Yates had no standing to bring the application. By way of obiter the court said that the impact with which s30 was concerned was a physical impact in the sense of an interference in a physical sense with a particular place, and that the decision under consideration was not one capable of having such an effect. Pincus J also said that if the Minister acted in breach of s30, this would not invalidate the action, a view with which Finkelstein J in Merri Creek, at [59] – [60] disagreed.

1. Returning to Merri Creek, at [62] Finkelstein J set out statements made by the State Minister in that case as to the approach adopted. The Minister regarded "feasible" as relating to the technical practicability and cost-effectiveness, and "prudent" as relating to the economic benefits and environmental and social merits, of a particular option to achieve a purpose. At [63], Finkelstein J described the whole of the statement as "clear and correct guidance" to the decision-maker. His Honour found that it was clear that the requirements of s30 were adhered to in the assessment process "in a manner that gave paramount importance to the protection of the grasslands registered on the national estate", saying that, "No proposal which would cause harm to the grasslands would be accepted unless there are reasons of technical impracticability and cost or extraordinary economic hardship or environmental and social disadvantage in providing such protection."  [My emphasis.]

The Tribunal's reasons

1. I think it is important to set out the relevant part of the Tribunal's reasons, in full. The Tribunal said that the phrase "no prudent and feasible alternative" in the HCHA, s41, seems to have had its genesis in American legislation. It then set out that part of the judgment in Merri Creek which I have reproduced, calling it "a very helpful passage".  The Tribunal went on to say:

"44      … In Merri Creek Finklestein [sic] J was dealing with a quite different statutory regime (as was of course the US Supreme Court in Overton Park). The Tribunal is not bound by that decision although of course it would be unwise to treat Finkelstein J's utterances with anything other than the utmost respect. But it seems to the Tribunal if the key to the proper understanding phrase 'no prudent and feasible alternative to the carrying out of the works' is in the words 'to the carrying out of the works' [sic]. Although the phrase with which His Honour was concerned was identical it is of course to be found in a different legislative and regulatory regime which does not regulate the carrying out of 'works' in relation to listed places.

45        It is the Tribunal's view in the context of Section 41 of the Historic Cultural Heritage Act 1995 that the phrase 'no prudent and feasible alternative to carrying out the works' is to be assessed and understood in the context of the proposal that is before either the Heritage Council or the Tribunal or, in other words, the works for which approval is sought. If any broader interpretation is to be adopted then Section 41 in effect will have no operation since as a matter of logic there is always a prudent and feasible alternative to the carrying out of any works in the sense that it is always possible to simply not carry out of those works. Alternatively any person could conceivably design a redevelopment plan for this site which maintains 2-4 Salamanca Place in a pristine state. That is not what is proposed and that is not what, in the Tribunal's view, Section 41 is aimed at considering. Section 41 clearly restricts the power of the Heritage Council or a planning authority to approve works which are likely to destroy or reduce the historic cultural significance of a registered place (or a place within a heritage area) if it is satisfied that there is no prudent and feasible alternative to carrying out of those works. But it must be that the phrase is to be read as concerned with the carrying out of the works in the context of the proposal.  [My underlining]

46 As far as this question is concerned in a factual sense the Tribunal prefers the evidence about the matter from Mr Francis-Jones. This is of course a topic about which experts may hold very different but equally honestly held views. That was very much the case here. There were several views expressed about the matter but Mr Francis–Jones made, in the Tribunal's view, a compelling case in terms of Section 41. He explained carefully why it was that there was no prudent and feasible alternative to the demolition of 2-4 Salamanca Place in the context of this proposal. It is noteworthy that none of the other expert architects called to give evidence (and there were several – Mr Freeman, Dr Bolt and Mr Rees) took issue with Mr Francis-Jones' explanation and conclusion in this regard. Specifically the Tribunal accepts his reasoning with respect to the building's floor heights being 'not commensurate with standard A-Grade commercial office dimensions' and the fact that to accommodate the existing floor levels and thus retain 2-4 Salamanca Place either in whole or in part would require such a 'complex system of ramps that would further compromise the heritage fabric [of the building] so as to provide equitable access'. It also is important to bear in mind that the proposal is for one grand design, which consists of many inter-related parts. If the proposal proceeds, several important buildings will be conserved and adaptively re-used (those on Davey Street for example, part of 12 Murray). A largely decrepit and woefully under-utilised part of Hobart will be re-vitalised. There seems to the Tribunal no prudent and feasible alternative in the context of this proposal to the demolition of 2-4 Salamanca Place to allow the whole city block to, once again, thrive."

Discussion

1. It seems clear that the Tribunal found the point of distinction from Merri Creek, in the concluding words of s41: "to the carrying out of the works". It seems that it is these words which led the Tribunal to say that the phrase "no prudent and feasible alternative to carrying out the works" is to be assessed and understood in the context of the proposal that is before the Council, and is to be read as concerned with the carrying out of the works in the context of such proposal. The words were described as the "key" to the proper understanding of the phrase. Considering the words fairly, I think it is clear from all the Tribunal's comments in par[45], that on an ill-defined basis it limited the scope of the inquiry so that it was constrained by what was sought to be achieved by the proposal, the question being how the proposal could be achieved by alternatives to the relevant works.

1. The appellant says that the Tribunal was wrong to distinguish Merri Creek, and that it took too narrow an approach to the meaning and application of s41, when it made those statements about the treatment of the phrase "no prudent and feasible alternative to the carrying out of the works". (For the sake of convenience, I will refer to the whole of this phrase where it is being considered as such, as simply "the phrase".) The appellant argues that the Tribunal's reasoning as appears in par[45] of its decision (above) is fatally flawed. It will be recalled that the Tribunal said that if any broader interpretation were to be adopted, then s41 would in effect have no operation since there is always a prudent and feasible alternative to the carrying out of the works; this being in the sense that it is always possible simply to not carry out those works, or alternatively (speaking as to this case) design a proposal which maintains 2 – 4 Salamanca Place in a pristine state.

1. The appellant refers to the Tribunal's statement that upon a broad interpretation of the section, the always present alternative of not carrying out the works (or of doing them in a different way which does not involve demolition) means that the section has no operation. She argues that if this be correct, then registration has no real consequences and the purpose of registering a place, and requiring works applications is defeated. The Council endorses what it says to be the narrow approach taken by the Tribunal, whilst Citta submits that a distinction between a broad approach and a narrow one is unhelpful, the correct approach is to be found in the ordinary meaning of the words as they are used in the section. The descriptions of broad and narrow seem to come from the statement by the Tribunal that if a broader interpretation of s41 is adopted, then s41 would have no operation. The reference to "broader" seems to relate back to the view expressed by Finkelstein J in Merri Creek as to the operation of the similar phrase which his Honour was considering.

1. On one view, as counsel for the appellant acknowledged, to say that the phrase must be concerned with the carrying out of the works in the context of the proposal is a statement of the obvious. I would have thought that the reason for, or what is sought to be achieved by, the works would always need to be considered, and that this means looking at the proposal, particularly where, as here, the works the subject of the application were far broader in scope than the "works" which were the subject of the s41 debate. On that basis I am unable to see why such a requirement for the context to be considered compels the distinction which the Tribunal sought to make between s41 and the provision being considered in Merri Creek. In any event however, it is clear that the Tribunal treated the requirement to consider questions of prudent and feasible alternatives to the carrying out of the works "in the context of the proposal", as confining the nature and extent of the inquiry. That is to say, the parameters of the issue under s41 are set by what is ultimately sought to be achieved by the proposal.

1. The starting point is to examine the Scheme created by the HCHA, both generally and as to carrying out works in relation to registered places. The scheme was considered by Wood J in Tasmanian Heritage Council v Citta Property Group [2010] TASSC 68. At [55], her Honour said that the general policy of the Act was to operate in a precautionary or inclusive fashion in terms of the protection it provides. Earlier, at [53] her Honour said that:

"Having considered the Act as a whole, it is evident that the primary purpose of the Act is to conserve and protect Tasmania's historic cultural heritage."

1. Relevant aspects of the operation of the Scheme are as follows:

·     Section 32(1) prohibits a person from carrying out works – as defined – in relation to a registered place which may affect the historic cultural heritage significance of the place unless the works are approved by the Council.

· Under s39(1), the Council may:

vapprove the works application;

vapprove the works application subject to any condition or restriction;

vrefuse to approve the works application.

· Section 41 is a limitation on the power to approve a works application where it is in respect of works which are likely to destroy or reduce the historic cultural heritage significance of a registered place.

1. It follows of course that all works which may affect a registered place in the proscribed way are prohibited unless approved. Where the works the subject of the application are likely to destroy or reduce the historic cultural heritage significance ("heritage significance") of the registered place, s41 applies. Works which are likely to destroy or reduce the heritage significance of a place are necessarily ones which may affect that significance, but the converse does not hold true. Some further observations need to be made about the use of the term "proposal" and works which fall within the meaning of s41. A proposal may be co-extensive with works which are likely to destroy or reduce the heritage significance of the registered place. That is to say, nothing more is proposed than that which has the likely effect. An example is the removal of a tree, for the simple reason than it is thought necessary to remove it.[2]

   [2] Such an issue and the application of s41 of the HCHA came before the Resource Management and Planning Appeal Tribunal in 2001: D & C Watson v Tasmanian Heritage Council [2001] TASRMPAT 76.

1. Alternatively, as in this case, the works which are likely to have the relevant effect – the demolition of a building – may form part of a much broader proposal for the area in which the building stands. Such a broader proposal may affect the heritage significance of another place or places, but may also involve works to that other place or places of such a nature to attract s41. In that event, the Council could of course, approve the application for works but, using my example, prohibit (or condition) the demolition of the building.

1. As is evident, the question posed by the ground of appeal is the correct approach to determining whether there are, or are not, prudent and feasible alternatives to carrying out the works, the works being those which are likely to diminish or reduce the heritage significance. That is to say, what is the nature of the test to be applied under s41. For the reasons which follow, I take the view that it is incorrect to confine the inquiry under s41 to "the context of the proposal" in the sense that the issue of prudent and feasible alternatives is confined to achieving what is ultimately sought by that proposal. In my view, the "prudent and feasible" test is a stringent one. That arises from the primary purpose of the Act, the wording of the phrase itself, and the application of s90 to the process.

1. In examining the application of the test and the operation of s41, I think that it is unhelpful with respect to what Wilcox J said in Yates, to speak in terms of "doing nothing" as a prudent and feasible alternative. That may have been a convenient shorthand expression to convey a concept. It is one that was used by the Tribunal to demonstrate why it thought s41 had a limited operation. Wilcox J suggested that the "do nothing" approach might ordinarily be thought to be a feasible and prudent alternative to action which will adversely affect a place entered on the register. However, the situation under s41 of the HCHA is that works which are likely to destroy or reduce the significance of a registered place cannot be done unless the Council is satisfied within the terms of the section. Nothing can happen if the Council is not so satisfied. In a sense, that is the "default" position by operation of the law.

1. In argument, there was much debate about applicability and persuasiveness of the decisions in Yates and Merri Creek, and whether the line of reasoning should be followed[3].  It is true that the Australian Heritage Act made no provision for a specific regulatory regime for the approval of carrying out of work which may affect a registered place. To that extent it is correct to say that s41 is to be found in a different legislative and regulative regime, but the general subject-matter and purpose of each piece of legislation is to protect historic and cultural heritage. Both the Commonwealth Act and the Tasmanian Act established a register for places of heritage significance, and created a body charged with the keeping of that register, and with other functions relevant to heritage preservation.

   [3]     One of Citta's arguments related to Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21. The submission was that as the cross-appeals had succeeded (see fn 1 above) no elements of Wilcox J's reasoning were left in place: Osland v Secretary to the Department of Justice (2010) 241 CLR 320 at [32]. In that case an appeal from the Victorian Court of Appeal was allowed, its orders set aside and the matter of an allegation of an error of law on the part of a tribunal remitted to the Court for further determination as to a basis it had not dealt with earlier. French CJ, Gummow and Bell JJ said that the first decision of the High Court was final and not an interlocutory decision which left in place elements of the reasoning of the Court of Appeal which had not been challenged, and the Court of Appeal wrongly proceeded on the basis that its conclusion that the Tribunal had erred in law had continued in effect. I consider that situation distinguishable from that which occurred in Yates in which there was no relationship between the reasoning as to s30(1), and the ground upon which the cross-appeal succeeded, and the orders set aside. In any event, what Wilcox J said can be taken as an articulation of an argument, and one which found favour with Finkelstein J in Merri Creek.

1. It is true that the HCHA provides for a regulatory regime for the approval of works which might destroy or diminish the significance of a place, and that s41 is an integral part of that regime. However, I think there are sufficient similarities in the scope and purposes of the Commonwealth Act and the HCHA to warrant taking the same conceptual approach, and one which involves giving very high priority to the preservation of registered places. I do not believe it is an accident that, although the words have been reversed, the critical parts of each section make it a requirement that the Minister in one case, and the Council in the other, be satisfied that there is no prudent and feasible alternative. In the Commonwealth Act, the alternative is expressed to be as to the taking of the relevant action. In the HCHA, the alternative relates to the carrying out of works which are likely to destroy or reduce the historic significance. I do not see that there is any importance to be attached to the reversal of the words, nor to the use of the words "to the carrying out of the works" in s41, as distinct from "to the taking of [the] action" in s30(1) of the Commonwealth Act.

1. I need also to refer to Re The Hon G D Kierath, Minister for Heritage; ex parte City of Fremantle [2000] WASCA 156. The court was concerned with an issue of registration of a place under the Heritage of Western Australia Act 1990. Although not directly germane to the issue, Wheeler J (with whom Wallwork J agreed), referred to s11 of that Act, which is in not dissimilar terms to s30 of the Commonwealth Heritage Act considered in Yates and in Merri Creek. The particular phrase was identical in that it required that no action be taken which will or be likely to affect the registered place unless the Minister is satisfied "that there is no feasible and prudent alternative to the taking of the action and … [etc]".  The Western Australian Act does contain a procedure for the approval of works to be carried out in relation to registered places.  By s57 a conservation order could be made by the Minister.  By virtue of s64, a person who wanted to carry out certain works, which included demolition or damage, could apply to the Heritage Council for a permit to be granted by the Minister authorising the carrying out of those works.  The Minister may act on, but is not bound by, the recommendation of the Council and seems to have an unfettered discretion. 

1. At [55] Wheeler J said:

"Working backwards, in a sense, through the Heritage of Western Australia Act, once a place is entered on the Register, either or an interim or permanent basis, the use of the land is not sterilised but, in broad terms, any action taken in respect of it must either be in accordance with the views of the Heritage Council, or there must be no 'feasible and prudent' alternative and all reasonable measures must be taken to minimise any adverse effect. The 'feasible and prudent' test is a stringent one, but would appear to encompass reference to economic considerations, such as the significance of what is proposed for the place to either the State as a whole, or the community, or a section of it, or an individual. …".

1. Given the similarity of subject matter and purpose in these other Acts, I regard the comments as to the operation of the respective sections and the reasoning processes exposed, as being very persuasive as to the proper approach to s41 of the HCHA, and to be given effect to as far as possible, having regard to any material legislative differences. In particular, there is good reason to apply the remarks of Wheeler J to the question of what s41 entails. Her Honour said that the test appeared to encompass economic considerations, such as the significance of what is proposed for the place, not only to an individual, but to the broader community. That impacts on the significance of the proposal and how the proposal is to be taken into account.

1. As to the principal aspect of the present issue, in my opinion the inquiry under s41 as to whether there is no prudent and feasible alternative to the carrying out of the works is not one confined to, nor constrained by, the parameters of the proposal. Section 39 gives to the Council a discretion to do certain things in respect of an application. Section 41 explicitly prohibits approval unless satisfied as to a certain state of affairs. From the placement and wording of both sections, I do not think, as was suggested on behalf of the Council, that Parliament can be taken as having intended the question of destruction or reduction of heritage significance be one which is dealt with "in the context of the proposal", leaving a wider inquiry as to the general desirability of works which are likely to have relevant effect, to be determined by reference to a broader discretion, albeit one regulated by s90.

1. As a matter of principle I do not think it is correct to limit the operation of s41 in the way suggested. It cannot be right that the decision-making as to a prohibition on works of a certain kind can be fashioned and constrained purely according to the terms of the proposal. On that basis, the inquiry becomes one as to how the proposal can be achieved other than by the proposed works. This severely limits the operation of the section and is an interpretation which does not promote the purpose of the Act. Section 8A of the Acts Interpretation Act provides that in the interpretation of a provision, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not.  I think that the so-called "narrow approach" is one which can fairly be said not to promote the purpose of the Act; at the very least, it is quite significantly less capable of that promotion than the "broader" interpretation. 

1. As to the combined operation of ss39, and 41, I do not believe that once the bar to approval has been lifted under s 41, approval necessarily follows. There may be some grounds for rejection in any event although in most cases, I imagine, that would be unlikely; approval would be a reasonable expectation. I should add that conversely, it is not right to think that were the Council not to be satisfied as to the absence of prudent and feasible alternatives to the carrying out of the works, it necessarily leads to the rejection of the application. In accordance with the approach endorsed in Kain v Glamorgan Spring Bay Council (above), the Council could raise various options with the proponent and allow amendment if it thought fit, with a view to approving the application, or more likely perhaps, approving it subject to conditions or restrictions.  In a case of proposed demolition, those options could obviously include such things as the retention of facades.

1. As to meaning of the phrase itself, I think it to be correct that the two words "prudent" and "feasible" do have their ordinary meanings, but in their context, concern particular issues.  Any alternative under consideration must of course be both prudent and feasible, a combination which may have an exponential effect.  I think it is correct to say that "prudent" as used in the section concerns acting with or showing care, thought, and sound judgment, and relates to profitability, economic management and frugality: New Shorter Oxford Dictionary 1993, Macquarie Dictionary, 5^th ed, 2009.  "Feasible" means practical, or possible in the sense of capable of being conveniently done or accomplished: New Shorter Oxford Dictionary 1993. What has to be confronted is whether the use of the phrase in s41 amounts to a direction that approval cannot be given unless there are overwhelming issues of technical impracticality or extraordinary economic hardship involved in the alternatives. That is to say, whether "there must exist 'truly unusual factors', or the cost to the community disruption resulting from alternatives must have reached 'extraordinary magnitudes' such that the alternatives present 'unique problems'." Merri Creek at [51].

1. Both Merri Creek and the influential American case of Overton Park concerned the construction of highways through parklands or through registered areas. It is not difficult to say that such comments as those to which I have just referred apply to such situations. It is much more difficult to say that they generally apply to the Scheme under the HCHA which regulates the carrying out of works which may affect the heritage significance of a place, by way of a permit. I do not consider it necessary or appropriate to define or attach labels to the type of circumstances which may justify a finding that there is no prudent and feasible alternative to the carrying out the works. What prudent and feasible alternatives exist are questions of fact. The exercise calls for a value judgment: Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 at 209, Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 69 FCR 28 at 80. I have said that the test is a stringent one. This is so because of the need to achieve the primary purpose of the Act and in particular, to accord with s90. Beyond that, I think that what can be said is that a very clear and compelling case would need to be made out in order to satisfy the Council that there is no prudent and feasible alternative to the carrying out of the relevant works. Section 41 plainly does not involve a test using the notion of the balance of convenience, merely weighing the convenience of doing things which involve the destruction or reduction of heritage significance against the inconvenience of what that causes in terms of loss of such value.

1. Rejecting the approach adopted by the Tribunal does not mean that it is inappropriate or unnecessary to look at the subject works in the context of the proposal.  As I have already indicated, the reason for the works is a relevant factor in the inquiry.  In many cases, the scope of the proposal will not be a wide one.  In some cases, as here, the works will be in the context of a much broader proposal of far greater scope and purpose.  What ultimately is sought to be achieved is a proper matter to be taken into account.  As Wheeler J said in Re The Hon G D Kierath (above), the test encompasses such things as the significance of what is proposed for the place.  I do not read that as being put in a limited sense.  In a manner of speaking, the greater the social utility of the ultimate purpose, the less "prudence" there may be in any alternatives, which would assist in the conclusion that there are no prudent and feasible alternatives.  It may be that the benefits of a broad proposal which only relates in part to a registered place, are so great that the destruction or diminution of heritage significance is justified.

1. At the same time, the extent of the heritage significance is also a relevant factor.  In the making of the value judgment, such an assessment is necessary.  The baseline starting point is the criteria for listing in the register.  In the same manner of speaking, the greater the value of the place, the greater would be the "prudence" of any alternatives.  It may be that there is iconic value of such a degree that it would take extraordinary circumstances to justify the works, if justifiable at all. 

Vitiating error of law?

1. Citta submits that if the Tribunal was wrong in its approach, in the circumstances of the case it is not a material vitiating error.  No authority was cited for what is involved in the determination of a vitiating error.  In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 353 that a decision did not involve an error of law "unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different". In the same case Toohey and Gaudron JJ said at 212 that for an error of law to be involved in a decision something more than the mere occurrence of error is necessary. "The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute." Their Honours said that an error is not involved in a decision if it did not contribute to the decision, or if the decision must have been the same regardless of the error, and that to show an error of law "it is necessary, at the very least, to show that the decision may have been different if the error had not occurred".

1. Where the onus of proof lay and what was entailed in the vitiating character of an error was the subject of a divergence of opinion in Sydney Water Corporation v Caruso (2009) 170 LGERA 298. Allsop P carried out an extensive review of the authorities, starting with the much cited[4] Leichardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 in which Moffitt P at 419 said that it was not sufficient to show that some error of law appears in the judgment, but the error "has to be one upon which the decision depends, so the decision is vitiated by the error". Allsop P considered that the authorities did not require any inflexible approach requiring an appellant to establish positively that the decision would have been different had the error not occurred. He then continued:

"26… To establish 'vitiation' one does not need to establish that the decision would have been different. What must be established is that the error is sufficiently material or operative to warrant the large step of setting aside in whole or in part the decision below. In terms of what Moffitt P said in Seatainer Terminals … this requires the establishment of the vitiation (viz impairing, spoiling, corrupting or invalidating) of a decision. Depending on the nature and quality of the error, its relationship to the issues and the extent and quality of the reasoning of the tribunal an assessment must be made of the importance of the error and the degree of affectation of the decision. The burden or degree of persuasion will depend upon the circumstances of each case."

[4]     See for instance in this State Glenorchy City Council v Tacon Pty Ltd [2000] TASSC 51.

1. At [27] his Honour said that in valuation cases (the type of case before the court) it was often difficult to be positive to the point of clarity that error had affected the outcome.  "If, however, the error goes to the heart of the cognitive and evaluative process and one cannot be satisfied that it did not play a relevant or material part in the decision then the appellant has established that the decision is vitiated."  Tobias JA held that it was for the party asserting error to satisfy the appellate court that the error had affected the relevant decision in the sense that it was one upon which the decision depended.  His Honour expressed doubt as to the proposition that a decision is only vitiated when it cannot be established that the asserted error did not affect or influence the relevant finding or did not operate in bringing it about.  This was on the basis that it required proof of a negative and thereby placed the burden of persuasion that the error did not affect the finding upon the party seeking to defend it: see [132] – [138].

1. In Caruso, Sackville JA found it unnecessary to decide between the different approaches.  At [193] his Honour noted, after referring to the judgment of Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226 at 234, the apparent scepticism as to whether correctly locating the burden of persuasion in relation to a process of reasoning, as distinct from locating the burden in relation to the proof of a fact in issue, is likely to be a matter of importance. At [199], his Honour went on to observe that the existence of legal error can give rise to a variety of questions including whether the error is material if it might have affected the decision, or only if it did in fact affect the decision. In his Honour's view, the answer to these questions will not necessarily be the same in all circumstances.

1. These proceedings, although described as a appeal, involve the exercise of original not appellate jurisdiction; they are in the nature of judicial review: Osland v Secretary to the Department of Justice (2010) 241 CLR 320 at [18]. Accordingly, I am content to follow what was said in Bond's case.  The error of the Tribunal will be a vitiating one if it is shown that the decision would have been, or might have been, different.  On one view, to say that there is error if one cannot be satisfied that an error did not play a relevant or material part in the decision, it simply means that there is the appropriate degree of satisfaction that the error might have contributed, and hence the decision might have been different: see Allsop P in Caruso at [27] (above).

1. Whether or not the error is a vitiating one in this case is an issue to which I have given careful consideration.  Citta urges me to look at the effect of what the Tribunal said as to the phrase being assessed and understood in the context of the proposal, and being read as concerned with the carrying out of the works in that context, as meaning no more than the context is a relevant consideration.  Senior counsel for Citta, acknowledged that some latitude might be required in relation to the language used, but what needs to be examined is the point which the Tribunal was attempting to make, and the way in which the task was approached.

1. As I have already indicated, it seems plain enough that it is the words "to the carrying out of the works" in s41 which led the Tribunal to distinguish Merri Creek, and to apparently derive no guidance from it. I have also said that it is apparent that the Tribunal confined its approach to the question under s41. Notwithstanding the way in which the Tribunal has examined and dealt with the factual material, I am satisfied that the error was such that a different outcome might conceivably have resulted, had the error not been made. To put it the other way, I am not able to say that there is no possibility that the error played no role in the outcome.

The Tribunal's reasons and the remaining grounds of appeal

1. The remaining grounds of appeal relate to issues surrounding cl 28.5 of the Scheme, and as such, relate to the "planning appeals" aspect of the appeals to the Tribunal, as distinct from the heritage appeals. The grounds of appeal all concern a consecutive number of further passages in the Tribunal reasons which are set out below. Clause 28.3 provides that a permit is required for all demolition in the Cove, and that all such demolition is discretionary. Clause 28.5 regulates demolition. There is no need to repeat its terms as they appear in the Tribunal's reasons. It is common ground that the demolition of both 10 Murray Street and 2 – 4 Salamanca Place is approved as part of a Conservation Plan approved by the Tribunal (in the shoes of the planning authority) within the meaning of cl 28.5(a)(i).  It is also common ground that sub-cls (a)(i), (ii) and (iii) of cl 28.5(a) are true alternatives.  The satisfaction of any one of them enables the approval of demolition.

1. The passages from the Tribunal's reasons are as follows:

"60      In the Tribunal's view this part of the Scheme [cls 22.4.4 and 22.4.5] is critical in a determination of the cultural heritage issues that arise under the Scheme. And the critical issue was the retention or otherwise of 10 Murray Street. In recognising this and saying that every other issue was, and is peripheral, is not to overlook the importance of other places and buildings. It does not diminish either the significance of the impact of the proposal upon Parliament House in particular (discussed above) or upon the surrounding area in general (addressed below). But the fundamental question is whether the retention of the State Office Building on 10 Murray Street is mandated by the planning scheme and, if so, whether the proposal can receive a planning permit. In short the Tribunal is not persuaded that a case is made, in terms of the planning scheme, for the building's retention. Again a close examination of Clause 28.5 is necessary. That clause, in full provides:

'28.5 Guidelines for Development Control

The demolition of any building, or works on land shall not be 'permitted' unless; a replacement development has been approved, or such demolition is required by statutory order or is authorised by the Building Surveyor as essential to public safety.

Any application for demolition:

(a)  Shall be refused if the building is included as a cultural heritage place in Table 1 of the Conservation of Cultural Heritage Values Schedule of this Scheme, unless:-

(i)the demolition is approved as part of a Conservation Plan approved by the Planning Authority or otherwise in its discretion under the Conservation of Cultural Heritage Values Schedule of this Scheme;

(ii)The building clearly detracts from the cultural values or significance of the place; or

(iii)There are overriding environmental, economic considerations in terms of the building or practical considerations for its removal, either wholly or in part.

(b)  May be refused if in the opinion of the Planning Authority the building contributes to the cultural heritage or urban character of the Activity Area and the building is capable of continued beneficial use.'

61        The Tribunal has already expressed a concluded view about Clause 28.5(a)(i). Turning to consider the other clauses, Mr Croker gave evidence (a view broadly supported by Mr Raworth and Professor Webber) that whilst there was some modest architectural merit in 10 Murray Street, in general its bulk, size, appearance and site all detract from the cultural heritage and character of the Sullivans Cove area. Fundamentally, as Professor Webber observed, 10 Murray Street seems to bear no considered relationship to either Parliament House or 12 Murray Street. Professor Webber expressed the view, which the Tribunal accepts, that it suffers from an 'insensitivity of context'. It is open to conclude, as the Tribunal does on the basis of this evidence, that the very existence of the building itself detracts from the cultural values or significance of Sullivans Cove generally although it does not follow from that conclusion that justification for demolition is to be found in terms of Clause 28.5(a)(ii). That clause is concerned with a particular heritage listed place rather than the Cove broadly.

62        So far as Clause 28.5(a)(iii) is concerned the evidence of Mr Francis-Jones and Mr Croker was persuasive. There was significant material that persuades that the removal of 10 Murray Street is justified since adaptive re-use of it, whilst very much a consideration in design terms, simply is not practicable. The proposal for its replacement will see the creation of office buildings which meet and exceed current environmental standards and create significant and useable public spaces. Once this is recognised it becomes apparent that removal is the only option. In the Tribunal's view there is ample material which persuades that there are overriding environmental and economic considerations to not retain the building.

63        Also important is a recognition of just what 10 Murray Street is. There was a great deal of evidence directed to this issue. As to its size, location and history there is little room for argument. Its history, and the social context in which it should be viewed, was the subject of comprehensive evidence from Dr Morris. Little of that evidence could be seriously disputed and it must certainly be the case that the building has some significance as a public service and government office block from the 1960s. However, everything that Dr Morris said was uncontentious and already in the public domain. It must be doubted that the retention or otherwise of the building would add at all to public understanding of that history.

64        But it is what the building is not that is critical to the disposition of the appeal (at least in the context of this point). Whilst not doubting for a moment Dr Bolt's importance in Tasmanian architectural terms (something about which there was general agreement) his own evidence about the matter means it is simply not possible to conclude that the building is 'his' design or even owes much to him. There is no room for doubt that, as a result of a public and parliamentary committee process that attended the selection of the appropriate design of the office, the building that was ultimately erected at 10 Murray Street in 1969 (five years after Dr Bolt's departure from Tasmania) is very, very different to Dr Bolt's original 1963 design. Among other changes to the original design, the height was reduced by six levels, the podium/base design was altered with material changed from sandstone to black granite, the proportions of fenestration were changed from the original use of the golden mean, the floor plan was changed from square to rectilinear, the relationship to and setback from Murray street was altered and the distance and setback from Parliament House changed. The original design was a higher, slimmer and more elegant proposal than the existing building. In the Tribunal's mind (and as Professor Webber evidenced) the existing building is neither an exemplar of anything much at all (and certainly not of the multi-storey office) nor is it especially well executed.

65        Clause 28.5(a)(iii) raises a separate issue for consideration, namely the practicality of retaining and re-using the building presently upon 10 Murray Street. The Tribunal was assisted greatly by evidence from the witnesses Schepers and Watson. In the Tribunal's view there was little meaningful distinction between these two well qualified witnesses. It is very clear from all the material before the Tribunal that the issue of retrofitting and adaptive re-use was carefully explored by the proponent. It is equally clear that retrofitting and adaptive re-use of the building are possible. Anything is – at a price. The real questions are whether in the context of the overall proposal such a price is worth paying and the end result is worth that price. The Tribunal's view is that adaptive re-use and retrofitting to allow that to occur cannot be justified in this case. The floor plate of the existing building is of its era and is such that whatever is done the level of efficiency expected of modern buildings cannot ever be achieved and will certainly be poor and expensive in comparison to the efficiencies to be delivered by the proposal.

66        The Tribunal is satisfied that clause 28.5(a)(iii) is satisfied in this case.

67        There are considerable practical considerations which dictate that it is appropriate that the building be removed. On the evidence, there is no realistic alternative to its total removal; partial removal simply is untenable in the circumstances of the case.

68 Turning to consider the effect of Clauses 22.4 and 22.5.[sic] Given that demolition is justified under the provisions of Schedule 7 then the matters do not fall for separate consideration even if the Tribunal is incorrect in reaching that conclusion for the reasons expressed with respect to the provisions of Schedule 7. A case for demolition is more than established in terms of Schedule 1."

1. There is also a later relevant part.  The Tribunal went on from the passage which I have just set out to deal with urban form issues relating to the proposal and associated cultural heritage matters, after which the following appears:

"Conclusion

78 The site proposed for redevelopment is decrepit and has, in large part, fallen into disuse. Revitalising the area is important for Sullivans Cove, Hobart and arguably the State of Tasmania. The importance of Parliament Square is obvious. Differing and legitimately held views plainly exist as to the manner in which the site should be redeveloped. Sincerely held, but differing, views exist as to the importance of the retention of 10 Murray Street. Most of the witnesses who gave evidence in relation to those issues conceded that views could legitimately exist that were different to their own and logic dictates that this must be so. Questions of cultural heritage significance are notoriously difficult to determine. In the end it is the provisions of the Scheme and the applicable statutory regime which must determine the issue of retention or otherwise of 10 Murray Street (or for that matter any other building listed in Schedule 1 of the Scheme). The issue is not, and cannot be, one that is determined by regard to subjectivity. The Tribunal has not approached the problem in this way and neither did any of the witnesses.

79        The Tribunal concludes on balance, and on the basis of the evidence before it, that this proposal is one which meets the requirements of the Sullivans Cove Planning Scheme 1997. As such the conclusion of the Tribunal is that the appropriate decision is to affirm the decision of the Authority the subject of the appeals and also to affirm the decision of the Heritage Council."

Ground (c) – Whether 2 – 4 Salamanca Place was dealt with under cl 28 of the Scheme

1. The appellant claims that in relation to 2 – 4 Salamanca Place, the Tribunal simply did not advert to the requirements of any part of cl 28.5. For the following reasons, the argument can only be made as to cl 28.5(b). Having dealt with 2 – 4 Salamanca Place under the HCHA, the Tribunal then went on to deal with the question of approval of the Conservation Plan, reminding itself at [49], that the purported plan approved the demolition of both 10 Murray Street and 2 – 4 Salamanca Place. It determined that a number of documents constituted a Conservation Plan within the meaning of the Scheme and at [55], said that having reached that conclusion, "it is plain that Clause 28.5(a)(i) is satisfied in this instance".

1. The appellant accepts that cl 28.5(a)(i) is satisfied, and accordingly the only complaint can be that the requirements of cl 28.5(b) were not addressed.  That sub-clause enables the Authority to refuse a permit for demolition if the building contributes to the cultural, heritage or urban character of the "Activity Area", and is capable of continued beneficial use.  As noted in [9], the relevant Activity Area is the Sullivans Cove Mixed Use Area as defined by cl 16 of the Scheme.  It is clear that notwithstanding the alternative nature of the paragraphs in cl 28.5(a), the Tribunal in fact considered each in relation to 10 Murray Street.  It is also apparent from even the fairest reading of the reasons, that the Tribunal did not make any further reference to cl 28.5 at all in relation to 2 – 4 Salamanca Place. 

1. Citta notes that the Tribunal expressly considered the demolition of 2 – 4 Salamanca Place in the context of s41 of the HCHA. This it is said, imposes a higher test as to the demolition of buildings than that imposed by the Scheme. It submits that it can be accordingly inferred that the Tribunal also considered that the demolition of 2 – 4 Salamanca Place was appropriate within the terms of the Scheme. In short, it is said that the Tribunal did not overlook the application of cl 28.5, but if it did overlook the clause, it is not a material vitiating error as the Tribunal expressly considered demolition under the HCHA using a more stringent test, and approved it. Citta did not argue that the Tribunal was under no obligation to consider cl 28.5(b), but whether as a general proposition, the Planning Authority must consider it need not be determined, as the appeal to the Tribunal put in issue the application of the whole of cl 28.5

1. I am unable to accept Citta's submission. In my view, the inference that the Tribunal directed its mind to all of cl 28.5 as it applied to 2 – 4 Salamanca Place because it considered its demolition in the context of the HCHA, is not a safe one to draw. First, where a decision-maker is bound to state reasons for arriving at a decision, "the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result": Waterways Authority v Fitzgibbon (2005) 79 ALJR per Hayne J at [130].  Secondly, as shown by some early remarks, and as might be expected, the Tribunal was conscious that there were appeals of two different types before it.  It can be taken to have been conscious that it was carrying out separate functions as to each type. 

1. Further, as I have just shown, the Tribunal noted that the purported Conservation Plan approved the demolition of 10 Murray Street and 2 – 4 Salamanca Place. Having held that the relevant documents constituted a Conservation Plan, it said that "it is plain that Clause 28.5(a)(i) was satisfied".  The Tribunal's discussion then turned to cls 22.4.4 and 22.4.5 which led to par[60], being the commencement of the passage which I have set out above.  The Tribunal specifically mentioned 2 – 4 Salamanca Place in the context of determining an issue about the Conservation Plan, but in the following pars[62] – [68], which I have set out above, in which there is no further mention at all of that building in the context of cl 28.5.  On that basis, I am satisfied that no determination was made under cl 28.5(b).  

1. Next, I do not think it is correct that a resolution of the issue under s41 of the HCHA implicitly carries with it a consideration and resolution of the issues under cl 28.5(b). It is to be remembered that this approval process is an entirely separate one from that required by the HCHA, and one to be carried out in the first instance by the Sullivans Cove Waterfront Authority. Here again, although of course the Tribunal was acting in the place of both authorities, separate approval processes existed. Approval was given under s41 of the HCHA on the basis that the Tribunal was satisfied that there was no prudent and feasible alternative to the demolition of 2 – 4 Salamanca Place. In doing so, as shown in the earlier discussion about the first ground of appeal, it confined the parameters of that inquiry to those set by the broader proposal. I have already ruled on the correctness of that approach. I do not think that given the Tribunal's approach, the issues framed in cl 28.5(b) of the Scheme can be properly taken as having been traversed in the debate about s41 of the HCHA.

1. The question is whether the law has been correctly understood and properly applied.  I am satisfied that there has been a failure to consider cl 28.5(b) as it applied to 2 – 4 Salamanca Place.  The Scheme imposed a legal requirement to consider the exercise of the discretion under the sub-clause, and a failure to do so is a vitiating error of law.  The ground is made out.

Ground (d) – Failure to recognise and exercise the discretion to permit demolition – 10 Murray Street

1. This ground arises from words used by the Tribunal in par[60] of the reasons as set out in par[55] above.  As to 10 Murray Street, the Tribunal said, after referring to cls 22.4.4 and 22.4.5 of the Scheme, that:

·     this part of the Scheme was critical in a determination of the cultural heritage issues that arose under the Scheme;

·     the critical issue was the retention or otherwise of the building, but that this did not diminish either the significance of the impact of the proposal upon Parliament House or on the surrounding area;

·     the fundamental question was however "whether the retention of … 10 Murray Street is mandated by the Planning Scheme and, if so, whether the proposal can receive a planning permit";

·     it was not persuaded that a case had been made, in terms of the Planning Scheme, for the building's retention.

1. Following these statements, the Tribunal said a close examination of cl 28.5 was necessary. It referred to the concluded view already expressed about cl 28.5(a)(i), and went on to deal with each of cls 28.5(a)(ii) and (iii), resolving that the requirements of each had been satisfied. It will be noted that in par[68], the Tribunal said that it turned to consider the effect of (what I believe should read) cls 22.4.4 and 22.4.5, saying that as demolition was justified under the provisions of Schedule 7 – cl 28.5 – then those matters did not fall for separate consideration. The whole of the passage is a little unclear, but on a fair reading, the Tribunal has expressed the view that even if it was incorrect in its conclusion under Schedule 7, then for the reasons expressed as to that exercise, "A case for demolition is more than established in terms of Schedule 1".

1. The error alleged is that the question posed was whether the retention of 10 Murray Street was mandated by the Planning Scheme, when the true much broader question was whether it was appropriate to grant a permit for its demolition.  The appellant points to the provisions of the Scheme which make a historic cultural heritage a primary objective: cls 6.2, 7.3.2, 22.1, 22.2 and 22.4.5.  The appellant then points out that by virtue of cl 28.3.1 a discretionary permit is required for demolition, and that an application for demolition must be refused unless one of the criteria under cl 28.5(a) is met.  The application may be refused under cl 28.5(b) if the Authority is of the opinion the building contributes to the cultural heritage or urban character of the Activity Area and the building is capable of continued beneficial use.

1. Accordingly, as the application to demolish is to be dealt with as a matter of discretion, the true situation was that the developer had to address the requirements of the Scheme and establish a case for the favourable exercise of the discretion.  The appellant says the Tribunal's approach involved a misconstruction of the Scheme.  Citta submits that a fair reading of all of the reasons relevant to this issue show that the correct approach was taken, pointing out that many of the issues are interrelated with overlap between them, with many aspects being capable of discussion as a totality.

1. In my view the ground is not made out.  The sentence in par[60] in which the Tribunal has posed "the fundamental question" is rather unhappily worded.  The question was put as being whether the retention of the building was mandated, and if so, whether the proposal would receive a planning permit.  If the retention of the building was mandated, then the proposal, at least to the extent that it contained the demolition of 10 Murray Street, could not have received a planning permit.  However, I take the view that the posing of the question can reasonably be taken as a reference to cl 28.5.  The posed consequential question can reasonably be taken as a reference to whether the discretion ought be exercised in favour of the proposal, containing as it does, the particular demolition. 

1. That is borne out by the subsequent discussion in the passages which I have set out. In particular, it is borne out by the reference to "practical considerations which dictate that it is appropriate that the building be removed" (par[67]), and that "a case for demolition is more than established in terms of Schedule 1" (par[68]). There is also the concluding remarks in par[79], to the effect that on the basis of the evidence before it, the Tribunal concluded that the proposal was one which met the requirements of the Scheme. Whether or not the Tribunal considered the issues required to be considered under cl 28.5(b) is a separate ground of appeal. As to this ground, looking at the approach as a whole, and adopting a fair reading of the reasons, my view is that the alleged error of law has not been established.

Ground (f) – A failure to consider cl 28.5(b) as to 10 Murray Street

1. As things have turned out, to a large extent this ground is the same as ground (c), in that it complains of a failure to consider cl 28.5(b), but this time as to 10 Murray Street.  Unlike the Tribunal's consideration of the Scheme provisions for 2 – 4 Salamanca Place, as to 10 Murray Street the Tribunal specifically addressed not only cl 28.5(a)(i) and the approval of demolition in the Conservation Plan, but went on to consider and make findings in relation to issues under cl 28.5(a)(ii) and (iii).  As with Salamanca Place, however, no mention was made of cl 28.5(b).

1. The appellant submits that this subclause is part of the Scheme which needs to be considered in the exercise of the discretionary power to permit demolition.  It requires an analysis of the matters referred to, they being the extent to which the building contributes to the cultural heritage or urban character of the Activity Area, and whether the building is capable of continued beneficial use.

1. There can be no doubt that the Tribunal did not expressly address cl 28.5(b), nor did it frame issues in such a way that it is open to conclude that the clause was being specifically addressed, albeit without direct acknowledgement.  For essentially the same reasons as I gave in relation to ground (c), I am satisfied that in fact the provisions of the subclause were not addressed, and that there was an error of law on that basis.  However, in relation to this ground of appeal, that is not the end of the matter. 

1. In dealing with the issues under cl 28.5(a)(ii) and (iii) concerning 10 Murray Street, the Tribunal canvassed a number of aspects of the evidence and made findings.  I will list the most significant of them. 

·     The Tribunal noted the evidence of one expert, noting that it was a view broadly supported by two others, that whilst there was some modest architectural merit in the building, "in general its bulk, size, appearance and site all detract from the cultural heritage and character of the Sullivans Cove area".

·     The proposition that the building seemed to bear no considered relationship to either Parliament House or 12 Murray Street appears to have been accepted.

·     The proposition that it suffered from "an insensitivity of context" was specifically accepted.

·     The Tribunal concluded that the very existence of the building itself detracted from the cultural values or significance of Sullivans Cove generally.

·     The Tribunal was persuaded that the removal of 10 Murray Street was justified since re-adaptive use of it, whilst very much a consideration in design terms, was simply not practicable.  This was because of the desirability of what would replace it.  "Once this is recognised it becomes apparent that removal was the only option".

·     It was said that there was ample material which persuaded the Tribunal that there are overriding environmental and economic considerations to not retain the building.

·     The Tribunal said that whilst it must certainly be the case that the building has some significance as a public service and Government office block, it must be doubted that the retention or otherwise of the building would add at all to the public understanding of that history.

·     As to the notion that the building was of some particular importance in architectural terms due to its connection with Dr Bolt, an architect of national importance, Dr Bolt's own evidence meant that it was simply not possible to conclude that the building or its design owed much to him. 

·     The Tribunal was persuaded that the building was neither an exemplar of "much at all (and certainly not of the multi-storey office) nor is it especially well executed".

·     Returning to the issue of the use of the building, the Tribunal said that it was very clear from all the material that the issue of retro-fitting and adaptive reuse was carefully explored by the proponent, and whilst it was clear that such measures were possible, the questions were whether in the context of the overall proposal the price for those measures was worth paying and the end result worth it.  On that basis adaptive reuse and retro-fitting could not be justified.

·     The Tribunal was satisfied that whatever was done to the building, the level of efficiency expected of modern buildings cannot ever be achieved, and will certainly be poor and expensive in comparison to the efficiencies to be delivered by the proposal.

1. At the least, cl 28.5(b) provides guidance in the way in which the discretion is to be exercised.  Demolition may be refused if the Authority forms a particular opinion.  To repeat the detail of that, the specified opinion is if the building contributes to the cultural heritage or urban character of the Activity Area and the building is capable of continued beneficial use.  Whilst the Tribunal's remarks were addressed to Sullivans Cove, and the relevant Activity Area only forms part of that, it follows that the Activity Area is contained within the area spoken of by the Tribunal.  It is highly unlikely that the building has a different impact, in cultural heritage terms, on the Activity Area than it does in relation to the wider Cove area, at least to the extent that it would militate against its demolition.  Otherwise, with the exception of the question of contribution to the urban character of the Activity Area, it seems to me that although not explicitly by direct reference, the Tribunal has effectively revealed its opinion to the types of matters referred to in cl 28.5(b). 

1. "Urban character" is not defined in the Scheme but is a term often used in the field of planning.  It seems to be a relatively vague term embodying a flexible concept.  When used in a planning scheme, the term would indicate the notion of general atmosphere or ambience manifest in both the physical environment and the social environment.  More particularly, it would include architectural, landscaping and social elements.  Any dominant architectural style, or use or activity, would be relevant.  Calling to mind the Tribunal's reasons, in my view a notion such as "insensitivity of context" would relate to "urban character".  The Tribunal's view was very clearly weighted in favour of demolition.  I think it extremely unlikely that having made the findings and comments concerning 10 Murray Street which it did, that a consideration of its contribution to the urban character of the area would have reversed things so as to favour retention. 

1. This aspect has caused me concern, but after careful consideration, I have reached the conclusion that the error is not a material vitiating error.  I am not satisfied that the error was one which might have affected the outcome.  To put it the other way, as previously discussed, I am satisfied that it can be said that, had the requirements of cl 28.5(b) been specifically addressed, the result would have been the same.  To that extent the particular decision was not affected by the error alleged, and the ground must fail.

Ground (g) – A failure to consider cl 28.5(a)(iii) as to 10 Murray Street?

1. The ground asserts that there was an error in law in the interpretation of cl 28.5(a)(iii) insofar as it related to 10 Murray Street, and a failure to determine the issues raised by that provision.  In my view, the ground can be speedily resolved.  As I have previously explained, it is common ground that the three limbs of cl 28.5(a) are true alternatives.  The Conservation Plan approved the demolition of 10 Murray Street, and accordingly cl 28.5(a)(i) was satisfied, a finding specifically made by the Tribunal.  As I have previously pointed out, there was no need for the Tribunal to consider the remaining two limbs of the provision.  As there is no challenge to the Conservation Plan and the finding as to cl 28.5(a)(i), the result cannot be affected by any alleged error in the approach to cl 28.5(a)(iii).

Outcome

1. The appeal is allowed. Orders should be made setting aside the decisions of the Tribunal to affirm the decision of the Heritage Council granting a permit under s39 of the HCHA and of the Authority granting a permit for the development. However, as is apparent, my conclusion is that the Tribunal has made errors of law only in its consideration of 2 – 4 Salamanca Place. There should be an order remitting the heritage appeal for reconsideration, but assuming a remitter to the same tribunal, it would not seem necessary to remit the entirety of the planning appeal. Section 25(5) of the Resource Management and Planning Appeal Tribunal Act 1993, requires this Court to hear and determine an appeal, and provides that it may make such orders as it considers appropriate. Section 25(6) provides that, without limiting subs(5), orders may be made which include setting aside a decision of the Appeal Tribunal and remitting the matter for consideration in accordance with any directions. I have the power to remit the matter with a direction that reconsideration of the planning appeal be limited to the proposed demolition of 2 – 4 Salamanca Place.

1. Counsel for the appellant asked that in the event of any part of the appeal succeeding, I leave open the question of remitter to the same tribunal or to a differently constituted one.  Accordingly, I will hear counsel as to the appropriate consequential orders in all respects.