Li v Willoughby City Council

[2018] NSWLEC 1262

Land and Environment Court

New South Wales

Medium Neutral Citation:	Li v Willoughby City Council [2018] NSWLEC 1262
Hearing dates:	23 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeals are upheld. 2. The Interim Heritage Order for 9 Centennial Avenue, Willoughby dated 14 February 2018 is amended to apply to the curtilage of the dwelling house, excluding the separate garage structure on the site, pursuant to s 27(a) of the Heritage Act 1977. 3. The emergency order, being Order 2972, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979. 4. The emergency order, being Order 2973, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 124 of the Local Government Act 1993 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act 1993. 5. The exhibits, other than exhibits 2, 3 and E, are returned.
Catchwords:	INTERIM HERITAGE ORDER: whether the jurisdiction for the council to have made an Interim Heritage Order was sufficiently engaged; whether on further inquiry and investigation the existing dwelling house on the site is likely to be found to be of local heritage significance.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Local Government Act 1993
Cases Cited:	McCudden v Cowra Shire Council [2016] NSWLEC 14 Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286
Category:	Principal judgment
Parties:	Wenzhen Li (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: Mr A. Galasso SC with Mr D. Robertson barrister (Applicant) Dr J. Smith barrister (Respondent)   Solicitors: Hall and Wilcox Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/57891, 2018/57862, 2018/57885
Publication restriction:	No

Judgment

1. These three appeals are made against the making of an Interim Heritage Order (IHO) and two emergency orders for the property at 9 Centennial Avenue, Chatswood (the site), by Willoughby City Council (the Council).

2. The appeal against the making of the IHO (file number 2018/57891) (“the primary appeal”) dated 14 February 2018 and made by the Council pursuant to s 25(2) of the Heritage Act 1977 (Heritage Act), is brought pursuant to s 30(1) of the Heritage Act in Class 1 of the Court’s jurisdiction.

3. The appeal against the making of the emergency order being Order 2972 (file number 2018/57862) (“the first Order”) dated 16 February 2018 and made by the Council pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), is made pursuant to s 8.18(1) of the EPA Act and is brought in Class 1 of the Court’s jurisdiction.

4. The appeal against the making of the emergency order being Order 2973 (file number 2018/57885) (“the second Order”) dated 16 February 2018 and made by the Council pursuant to s 124 of the Local Government Act 1993 (Local Government Act), is made pursuant to s 180(1) of the Local Government Act and is brought in Class 2 of the Court’s jurisdiction.

Issue

5. The Council has raised a single contention in these proceedings, namely that on further inquiry or investigation the dwelling house at 9 Centennial Avenue Chatswood may be found to be of local heritage significance.

6. The applicant contends that the jurisdiction for the Council to have made the IHO was not sufficiently engaged, because the Council in making the IHO did not comply with the terms of condition (1)(b) of the conditions for local council’s to make IHOs, set out in Schedule 2 of the Ministerial Order published in the NSW Government Gazette No. 90 dated 12 July 2013 on pages 3421-3 (“Ministerial Order”, exhibit 5, tab 34), requiring the Council to consider a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council.

The site

7. The site is on the northern side of Centennial Avenue, on the western corner of Centennial Avenue and Jenkins Street, Chatswood and is legally described as Lot D, DP 336587. The site has an area of 1,561m2.

8. The site contains a two storey dwelling and a separate single storey double garage fronting Jenkins Street.

9. The site is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012.

The terms of the IHO and Orders

10. The IHO is dated 14 February 2018 and applies to the curtilage of the site. The IHO will lapse six months from the date that it is made unless it is revoked or the Council passes a resolution before that date to place the item on the heritage schedule of the appropriate environmental planning instrument.

11. The Council notified the applicant of the making of the IHO by two letters sent to the applicant, both dated 14 February 2018. One letter included an explanation that the resolution of Council was determined on the basis of previous heritage studies identifying the significance of the building and its curtilage (exhibit B, tab 40) and the other included an explanation that the Council considers that upon further inquiry or investigation the property may be found to have local heritage significance (exhibit 5, tab 7).

12. The terms of the two Orders are as follows:

The first Order

1. Provide weather protection to the dwelling including a tarpaulin or the like over the roof of the dwelling.

2. Make safe the premises by providing appropriate hoardings fences to prevent public access onto and into the dwelling.

3. All doors and windows to the dwelling shall be closed and locked. If the windows and door have been removed they shall be boarded over.

4. Repair the roof, external door and windows of the dwelling to the condition that existing prior to demolitions works being carried out.

The second Order

1. Provide protection to the dwelling including a tarpaulin or the like over the roof of the dwelling.

2. Make safe the premises by providing appropriate hoardings fences to prevent public access into the dwelling and the site.

3. All doors and windows shall be closed and locked. If the windows & doors have been removed they shall be boarded over.

4. Maintain the premises in a safe and healthy condition by removing all overgrown vegetation from the premises so it does not provide harbourage for vermin. As a guide, grasses should be cut to a height of no more than 50mm above ground level across the entire premises, including the nature strip. Weeds and vines should be removed, especially if they are declared noxious, and any undergrowth should be reduced.

Statutory framework

13. The Court has, on appeal, all the functions and discretions that the Council had to make the IHO, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act), as it is the Council’s decision to make the IHO that is the subject of this appeal. An appeal in respect of the Council’s decision to make the IHO is by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal, pursuant to s 39(3) of the LEC Act.

14. The Council was authorised under s 25(2) of the Heritage Act to make an IHO, as follows:

s 25(2) Heritage Act

A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council’s area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed.

15. The Council is authorised to make an IHO under s 25(2) of the Heritage Act by the Ministerial Order, subject to the conditions in Schedule 2. It was common ground that all of the conditions except (1)(b) were either not relevant or satisfied. Condition (1)(b) is in the following terms:

[A Council must not make an IHO unless:] (b) it has considered a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the council and considers that:

(i) the item is or is likely to be found, on further inquiry and investigation, to be of local heritage significance;

(ii) the item is being or is likely to be harmed;

(iii) the IHO is confined to the item determined as being under threat;

16. The effect of an IHO is given by s 57 of the Heritage Act, as follows:

57 Effect of interim heritage orders and listing on State Heritage Register

(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3:

(a) demolish the building or work,

(b) damage or despoil the place, precinct or land, or any part of the place, precinct or land,

(e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,

(f) alter the building, work, relic or moveable object,

(g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct,

(h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.

17. The powers of the Court in relation to the appeal against the first Order are pursuant to s 8.18(4) of the EPA Act, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

18. The powers of the Court in relation to the appeal against the second Order are pursuant to s 180(4) of the Local Government Act, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the council could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

Consideration

Class 4 proceedings in the Land and Environment Court

19. The owners of the site obtained a Complying Development Certificate NW 17/2476 (“CDC”) issued by a private certifier on 9 February 2018 for the demolition of the dwelling. The demolition works were underway when a Council officer attended the site on 12 February 2018. The Council, in the Statement of Facts and Contentions for the appeals against the making of the two emergency orders (exhibit 3), contends that there was no power to determine the application for the CDC as it was issued in breach of a number of the requirements of the EPA Act and Regulation and is therefore invalid. The CDC is the subject of Class 4 proceedings commenced in the Court by the Council (file number 2018/145847) and not yet heard or determined.

20. The appeals in this Court cannot determine the question of the validity or invalidity of the CDC. Until the validity of the CDC is determined by the Court in the Class 4 proceedings, the CDC remains in force (McCudden v Cowra Shire Council [2016] NSWLEC 14 [114]).

The IHO was validly made

21. On 12 February 2018, the Council considered a report prepared by Mr Ian Arnott, the Planning Manager of Willoughby Council, which recommended that the Council resolve to issue an IHO under the Heritage Act in relation to 9 Centennial Ave Willoughby (exhibit 5, tab 9). There were three attachments to the report provided to the Council, including as Attachment 3, a draft Heritage Inventory Sheet for 9 Centennial Avenue Chatswood.

22. I accept the applicant’s submission that the report prepared by Mr Arnott does not fit the description in condition (1)(b) of the Ministerial Order of a preliminary heritage assessment and it is insufficient for that purpose. Mr Arnott in his oral evidence conceded his own lack of expertise in cultural heritage conservation. I accept the applicant’s submission that the references within Mr Arnott’s report to the two heritage reports prepared in 1996 and 2009 are insufficient to satisfy the terms of condition (1)(b) of the Ministerial Order, because those reports were not placed before the Council for consideration at its meeting on 12 February 2018.

23. I am, however, satisfied that the draft Heritage Inventory Sheet, attached to Mr Arnott’s report and considered by the Council at its meeting on 12 February 2018 satisfies the relevant terms of condition (1)(b) of the Ministerial Order, requiring the Council to consider a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council.

24. According to Mr Arnott, the draft Heritage Inventory Sheet was compiled by Council’s heritage planner, Ms Lynette Morris, using the heritage inventory sheet template provided by the Heritage Branch and based on the information in the two heritage reports prepared in 1996 and 2009, which considered the heritage significance of the dwelling house on the site.

25. The draft Heritage Inventory Sheet is dated, in the footer, 15 April 2015 and ‘Data Entry’ on the form is recorded as first entered 28 May 2009 and updated 30 April 2014. The draft Heritage Inventory Sheet cites references and studies, including Graham Brooks & Associates ‘Study of Nominated Conservation Area – Centennial Avenue Chatswood’ 2006 and Robert A Moore ‘Review of proposed Heritage Listings in the City of Willoughby’ and ‘Review of Submissions to Heritage Inventory’, both dated 1996 (“the two heritage reports”). The draft Heritage Inventory Sheet is in the standard template format for heritage inventory sheets and includes a statement of significance and physical description of the dwelling, with citations referencing the two heritage reports.

26. As the draft Heritage Inventory Sheet was compiled by the Council’s heritage planner, based on the information provided in the two heritage reports, which were authored by heritage consultants with architectural and cultural heritage expertise, the requirement in condition (1)(b) of the Ministerial Order for the Council to consider a preliminary heritage assessment of the item prepared by a person with appropriate heritage knowledge is satisfied.

27. The applicant contended that the Council’s decisions in 1994 and 2009 not to heritage list the item has the consequence that the two heritage reports cannot be reused as preliminary heritage assessments of the item to satisfy condition (1)(b) of the Ministerial Order, because the Council’s decision to decline to heritage list the item indicated that the dwelling did not have the requisite local heritage significance. I do not accept this submission. There is no temporal requirement in condition (1)(b) for the preliminary heritage assessment to be recently prepared and nothing to prevent a heritage assessment being reused for the Council’s consideration at a later date, notwithstanding that the Council had previously resolved on the basis of one or both of those reports and other relevant information not to heritage list the item. On the evidence before me, there have been no significant changes to the dwelling or its context that would render the information or the conclusions in the two heritage reports or the draft Heritage Inventory Sheet redundant or irrelevant.

28. The information in the two heritage reports was legitimately used to compile the draft Heritage Inventory Sheet which was placed before the Council at its meeting on 12 February 2018 as a preliminary heritage assessment for the purposes of satisfying the relevant terms of condition (1)(b) of the Ministerial Order. The applicant submitted that the draft Heritage Inventory Sheet is a “patchwork of paragraphs”, with reference to Preston CJ’s factual finding that “a patchwork of paragraphs, photographs and sample results… not readily identifiable as making up a single entity” purporting to be a report did not satisfy the relevant statutory requirement for a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines (Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 [104]). The facts in this matter are sufficiently distinguished for this submission to be disregarded. The heritage inventory sheet template provided by the Heritage Branch to all NSW councils anticipates a patchwork of information because it prompts the recording of dates when information is updated and the sources used to compile the document. Heritage inventory sheets are necessarily a patchwork of information because they are a merely a summary of the heritage significance of an item and are generally based on whatever sources are available at the time of drafting. Draft heritage inventory sheets using the Heritage Branch standard template are customarily prepared as an annexure to a heritage report recommending the heritage listing of an item or groups of items for the consideration of the decision makers.

29. I am satisfied that in making the IHO for 9 Centennial Avenue, Chatswood, the Council complied with the conditions in Schedule 2 of the Ministerial Order authorising the Council to make IHOs for items within its local government area in accordance with s 25 of the Heritage Act and that the IHO was validly made.

30. The applicant submitted that the conditions in the authorisation contained in the Ministerial Order are fundamental in nature and the absence of an essential precondition to the exercise of power granted under the Heritage Act by the Ministerial Order means that there was no decision made by the Council in relation to the IHO. It is in the statutory framework of the Heritage Act that unless the preconditions to the grant of power existed, the Council had no power to make the IHO (Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355, 381). As a consequence, the Court does not get to the point of considering the merits of this appeal, because the jurisdictional point raised by the applicant is a threshold question and s 39(3) of the LEC Act presupposes the presence of jurisdiction for the purposes of determining the merits.

31. Notwithstanding my finding that the IHO was validly made, this Court has jurisdiction to consider afresh the Council’s decision to make the IHO, pursuant to ss 39(2) and (3) of the LEC Act, because the Council’s decision to make the IHO is a decision purported to have been made in the exercise of the powers conferred by an enactment, whether or not as a matter of law it was validly made (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 [18] and the “Lawlor principle” has been most recently embraced by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 [39]).

The IHO is retained and amended

32. The Council relied on the expert heritage evidence of Ms Jennifer Hill. Ms Hill prepared an expert report (exhibit 4) and gave oral evidence. The applicant did not adduce independent expert evidence on the primary appeal and submitted that I can form a view to revoke the IHO irrespective of the views formed by the Council’s witness (Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286 [44]).

33. Ms Hill has viewed the site from the public domain on a number of occasions. Ms Hill has not seen the interior of the dwelling house. I accept the applicant’s submission that access to the dwelling was not denied to the Council or the Council’s experts by the applicant.

34. Ms Hill has sourced further documentary evidence in addition to the documentary evidence referred to in the two heritage reports that in her opinion unequivocally attributes the dwelling house at 9 Centennial Avenue Chatswood to the work of the esteemed architect, Frederick George Castleden, constructed in c1895. Castleden lived in the area and designed four houses in Centennial Avenue. Ms Hill’s expert report includes a preliminary comparative analysis of surviving examples of Castleden’s work, some of which are listed as local heritage items in other local government areas, and she concludes that the dwelling house at 9 Centennial Avenue, Chatswood is one of the best surviving examples of Castleden’s body of work. Ms Hill’s expert report identifies the notable residents of the dwelling and concludes that the dwelling has associative value in its connections with local identities. Ms Hill is of the view that the dwelling is of heritage significance and is worthy of a local heritage listing because it satisfies a number of the NSW Heritage Assessment Criteria. On the basis of Ms Hill’s evidence and the draft Heritage Inventory Sheet, I am satisfied that the dwelling is or is likely to be found, on further inquiry and investigation, to be of local heritage significance.

35. In Ms Hill’s opinion, the separate garage structure on the site is not contemporaneous with the construction of the dwelling and is not likely to be of any heritage significance, because the existing garage is significantly larger than the garage evident on an aerial photograph taken in 1943. I accept the applicant’s submission that the IHO should be confined to the item determined as being under threat, which is the dwelling house. The garage structure, which is not likely to be of any heritage significance, can be excluded from the IHO.

36. It was common ground that the CDC for the demolition of the structures on the site means that the dwelling house is likely to be harmed, satisfying condition (1)(b)(ii) of the Ministerial Order.

37. I am satisfied that the IHO made on 14 February 2018 should be retained and amended to apply to the curtilage of the dwelling house only, excluding the garage, so that the IHO is confined to the item determined as being under threat, pursuant to condition (1)(b)(iii) of the Ministerial Order.

38. Condition (2)(e) of the Ministerial Order authorising the Council to make the IHO prevents a council from making an IHO where a CDC has been granted and is in force for the demolition of an existing dwelling and the erection of a new single storey or two storey dwelling house. The terms of this condition are conjunctive, requiring the CDC to be for both the demolition of an existing dwelling as well as for the erection of a new house. As the CDC was granted only for the demolition of the structures on the site and did not include the erection of a new dwelling house, condition (2)(e) of the conditions in Schedule 2 of the Ministerial Order is not contravened by the making of an IHO for the site.

The emergency orders have been sufficiently complied with

39. The Council’s contentions regarding the emergency orders (exhibit 3) state that the emergency orders were issued because the dwelling was being demolished and the emergency orders have now been complied with.

40. The Council submitted that the second Order merely duplicates the first Order, so the Council is content for the second Order to be revoked. However, it is the Council’s position that the first Order should prevail in order to ensure the dwelling is protected. It is not necessary to retain the first Order to protect the dwelling house as it is protected by the IHO which prevents its demolition, pursuant to s 57(1)(a) of the Heritage Act.

41. In relation to the first Order, I am satisfied that it is not necessary for the applicant to repair the roof, external door and windows of the dwelling to the condition that existed prior to the demolition works being carried out because firstly the demolition works were carried out by the applicant in good faith under the CDC and secondly the item has not yet been found to be of local heritage significance. The reinstatement of demolished fabric is a matter for consideration if and when the item is found to be of local heritage significance.

42. I accept the applicant’s submission that the requirement in the second Order to mow the lawn does not reflect the current reasonable condition of the garden and as such it is an onerous requirement not directly related to the reasons for which the emergency order was issued.

43. It was common ground that the applicant has complied with orders numbered 1 to 3 in both emergency orders and so I am satisfied that the first Order has been sufficiently complied with pursuant to s 8.18(4)(d) of the EPA Act and that the second Order has been has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act.

Conclusion

44. When the Council resolved to make the IHO at its meeting on 12 February 2018, the draft Heritage Inventory Sheet for the dwelling house, which had been compiled using the information contained in the two heritage reports both authored by people with appropriate heritage expertise, had been provided to the Councillors as an attachment to the report for their consideration and this was sufficient to satisfy the relevant terms of condition (1)(b) of the Ministerial Order requiring the Council to consider a preliminary heritage assessment of the item. I am satisfied that the IHO for 9 Centennial Avenue, Chatswood, was validly made by the Council.

45. The Council’s contention that on further inquiry or investigation the dwelling at 9 Centennial Avenue Chatswood may be found to be of local heritage significance is made out by the evidence before me and the IHO should be retained, however, the IHO should be amended to apply only to the curtilage of the dwelling house, excluding the separate garage structure on the site.

46. I am satisfied that the applicant has sufficiently complied with the two emergency orders issued by the Council, by protecting the dwelling from the weather and making safe the site, pursuant to s 8.18(4)(d) of the EPA Act and s 180(4)(d) of the Local Government Act.

Orders

47. The orders of the Court are:

1. The appeals are upheld.

2. The Interim Heritage Order for 9 Centennial Avenue, Willoughby dated 14 February 2018 is amended to apply to the curtilage of the dwelling house, excluding the separate garage structure on the site, pursuant to s 27(a) of the Heritage Act 1977.

3. The emergency order, being Order 2972, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979.

4. The emergency order, being Order 2973, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 124 of the Local Government Act 1993 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act 1993.

5. The exhibits, other than exhibits 2, 3 and E, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 31 May 2018