Maria Joanne Rajendran (by her Litigation Guardian Anashuya Lewis) v The Heritage Council and the Executive Director Employed Under Part 2 of the Heritage Act 1995 (Vic)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0077

MARIA JOANNE RAJENDRAN (by her Litigation Guardian Anashuya Lewis)	Applicant
v
THE HERITAGE COUNCIL	First Respondent
and
THE EXECUTIVE DIRECTOR EMPLOYED UNDER PART 2 OF THE HERITAGE ACT 1995 (VIC)	Second Respondent

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JUDGES:	TATE, PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 February 2017
DATE OF JUDGMENT:	16 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 48
JUDGMENT APPEALED FROM:	[2015] VSC 732 (Ginnane J)

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TOWN AND COUNTRY PLANNING – Heritage buildings, places and objects – Application for an order in the nature of mandamus – Property registered on Victorian Heritage Register – Scope of the Court’s power to compel removal of the property where no relevant application made under the Heritage Act 1995 for its removal - Heritage Act 1995 ss 15, 19, 42, 54, 64 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C W Porter	T J Mulvany & Co
For the First Respondent	No appearance
For the Second Respondent	Mr B Jellis	Victorian Government Solicitor’s Office

TATE JA
SANTAMARIA JA:

Summary

The applicant and her husband purchased a property in Camberwell that had been designed by Robin Boyd. After they purchased it, it was added to the register of historic buildings established under the Historic Buildings Act 1981 (‘the 1981 Act’). When the Heritage Act 1995 (‘the Act’) was enacted, the property was automatically placed on the Victorian Heritage Register (‘the Register’) established under that Act. The jurisdiction to add a property to the Register and to remove a property is conferred on the Heritage Council; each power is closely regulated by provisions in the Act. Inclusion on the Register means that a property is unable to be altered or modified without the consent of the Heritage Council which exercises its powers under the Act. Over the years, the applicant has made several applications to modify the property. Those applications have either been refused or granted subject to conditions that the applicant has found to be unacceptable.

The applicant wants the property removed from the Register. In the present proceeding, the applicant has applied to the Court for an order compelling the Heritage Council to remove the property from the Register. The applicant has not applied to the Council to exercise its powers of removal. Her application to the Court was dismissed by the primary judge. She has now applied for leave to appeal to this Court.

The application for leave to appeal should be dismissed. Parliament has conferred the power of removal from the Register on the Heritage Council. By failing to apply to the Heritage Council for removal and instead in effect applying directly to the Court, the applicant has misconceived the function of the Court. While the Court may exercise jurisdiction supervising the exercise by delegates of Parliament of the powers delegated to them, it cannot itself exercise those powers.

The facts

The applicant, who was the plaintiff below, is the owner of the residential property at 664-666 Riversdale Road Camberwell (‘the property’).[1] The property is located on the south side of Riversdale Road, a short distance to the east of the railway crossing on the Alamein line, opposite Riversdale Park. There is a small, lightly constructed house on the property (‘the house’), hidden from view behind a high ti-tree fence constructed along the frontage of the property.
[1]This summary account of the facts is taken from the judgment of the primary judge which contains a fuller account. See Rajendran v The Heritage Council [2015] VSC 732 (Ginnane J) (‘Reasons’).

The house was built in 1947 and extended in 1952, on both occasions to the design of Robin Boyd, a noted architect,[2] who purchased the property in 1947 and resided with his family in the house after it was built, until 1959.[3]
[2]See Brenda Niall, The Boyds (Melbourne University Press, 2002); Robin Boyd, The Boyer Lectures 1967 — Artificial Australia (Australian Broadcasting Commission, 1967).
[3]Reasons [16]–[18].

The first respondent, who was the first defendant below, is the Heritage Council, a body established under pt 2 of the Act. Its statutory functions, as set out in s 8 of the Act, include adding and removing places or objects from the Register.[4]
[4]At a directions hearing, the second respondent was added as a party to the proceeding. The first respondent indicated that it would abide the orders of the Court save as to costs based on R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. The parties were also directed to exchange written submissions.

The second respondent, who was the second defendant below, is the Executive Director employed under pt 2 of the Act. His statutory functions, as set out in s 15 of the Act, include determining applications for permits and consents under the Act.

The Register

The Register was established by the Executive Director following the commencement of pt 3 of the Act. The Register is the successor to the Register of Historic Buildings established under the 1981 Act (‘the 1981 Register’). Places previously included under the 1981 Act were included on the Register by operation of s 19(b) of the Act. Inclusion on the Register has a number of statutory consequences, including that a permit or consent is required before a person may undertake activities, such as demolishing or developing all or any part of a registered place (s 64).

The property has been included on the Register (including its predecessor), since 2 October 1991.[5]
[5]Reasons [3].

The relief sought

The relief sought by the applicant is an order in the nature of mandamus to compel the Heritage Council to remove the property from the Register.

At trial, the applicant relied on, inter alia, an affidavit sworn 26 March 2015. She was not cross-examined on her affidavit, which included a large body of documents exhibited to it that were admitted into evidence. The applicant also relied on the Conservation Management Plan (‘CMP’) and the Guidelines for the Conservation of Places of Cultural Significance adopted by the Australian National Committee of ICOMOS (International Council on Monuments and Sites) on 19 August 1979 at Burra, South Australia, revised on 23 February 1981, 23 April 1988 and 26 November 1999 (‘the Burra Charter’) which were also admitted into evidence. No evidence was called on behalf of the respondents.

Chronology

In 1972, the applicant and her husband purchased the property including the house, as joint proprietors. The applicant became the sole owner of the property following the death of her husband on 31 January 2010. From 1972 until 1990, the applicant and her family resided for most of the time in Singapore. The house was occupied from time to time by the applicant and her family, by tenants, and by the occasional squatter. For considerable periods it was vacant. In 1975, the applicant and her husband added an extension to the southern end of the house, for the convenience and comfort of their children, who were residing in the house during their education in Melbourne. In 1987, in anticipation of her family’s return to Melbourne to live, the applicant discussed the options on the one hand of demolition of the house and on the other of altering and extending it, with officers of the National Trust of Australia (Victoria) (‘the Trust’). At that time the only permit that would have been required to alter, extend, or demolish the house was a permit under the Building Control Act 1981 from Camberwell City Council.

Having decided to alter and extend the house rather than demolish it, the applicant engaged an architect, Mr Graeme Jones, to prepare plans of a proposal to alter and extend the house. On 10 October 1990, the Trust applied to the Director of the Historic Buildings Council (‘HBC’) under s 18(1) of the 1981 Act, to have the house added to the 1981 Register kept by the Minister under s 14 of that Act. On 22 November 1990, the HBC served an interim preservation order under s 40 of the 1981 Act, forbidding demolition or alteration of the house.

By letter dated 7 January 1991, the Director of the HBC informed the applicant and her husband that the Classification Committee intended to carry out an examination as to whether the property, including the house, should be added to the 1981 Register, and that ‘a hearing to investigate the architectural and historic significance of this property has now been listed for 27 February 1991 at 1.00 pm in the Ground Floor Theatrette 477 Collins Street Melbourne’.

Section 18 of the 1981 Act provided that the HBC was required to make an examination as to whether the building should be added to the 1981 Register. Under s 18(6), after carrying out that examination, it could make a recommendation to the Minister that the building be added to the 1981 Register. Under s 14, the Governor in Council, on the recommendation of the Minister, could then cause the 1981 Register to be amended by publishing notice in the Government Gazette, adding the property including the house to the 1981 Register.

On 27 February 1991, the applicant and her architect attended the meeting of the Classifications B Committee of the HBC. She and an officer of the National Trust, and officers of the Camberwell City Council, were heard. The officer of the National Trust said that the building was of architectural and historic importance for the following reasons:

The building is one of the leading and surviving prototypes of modern domestic design built in Melbourne after the Second World War.
The house is significant as one of the earliest works of Robin Boyd and for being the first of two highly influential houses which Boyd designed for himself and his family and which enjoyed both local and international acclaim.
The house is substantially intact.

The applicant, through her architect, said that although the applicant did not oppose registration of the property, she feared that ‘the relevant permits process would make it almost impossible to change the building to a liveable condition’. The applicant also referred to the following statement in the minutes of the 1991 meeting:

The Chairperson pointed out to Mr Jones that in the case of the building being registered, the owner would be assisted by the Heritage Branch in the process of finding a viable solution for alteration works and that the Permits Committee of the Historic Buildings Council generally look upon proposals for alteration sympathetically.

Property included on the Register

On 27 February 1991, the Classifications B Committee resolved ‘to add the property to the Historic Buildings Register’. Under the heading ‘Statement of Significance’, the Committee said:

The former Robin Boyd house at 664 – 666 Riversdale Road, Camberwell was built in 1946–7. It has historical and architectural significance for the following reasons:
•The house is the earliest known extant residence designed by the renowned Australian architect Robin Boyd.
•It is unique in being a house that Boyd designed for his personal use and occupied and extended over a period of twelve years.
•This strong association with Boyd is particularly significant because Boyd was an important architect and a prominent social critic and commentator. He played a major role in the development of architecture and architectural thinking in Victoria for four decades.
•The house through its alteration is important in that it demonstrates the architectural development of Robin Boyd from the early period of his career in the 1940s when he expounded his theories on ‘Victorian Regionalism’ to the emerging ‘Internationalism’ of the 1950s.
•The building is a seminal work which can be regarded as the prototype of the post-war Modern Victorian house. It extended the leading architecture of its time and strongly influenced an emerging group of architects.
•The house is of architectural significance in that it demonstrates innovative design with regard to response to site, informality in planning, flowing spatial arrangements, innovative use of materials and incorporation of built-in features. These are all aspects of domestic design which have now become common.

By memo to the Minister dated 9 April 1991, the Director of the HBC informed the Minister that, on 27 February 1991, the Classifications B Committee had recommended ‘that the above building be added to the Register of Historic Buildings’ and resolved to recommend to the Minister to ‘add the whole of the buildings and land known as the former Robin Boyd House, 664-666 Riversdale Road Camberwell to the Register of Historic Buildings’ and submitted a form of recommendation containing the Statement of Significance.[6]
[6]Section 34 of the Act provides that if the Executive Director recommends to the Heritage Council that a place or object be included in the Heritage Register, the Executive Director must give a statement in accordance with this section. Section 34(2) provides that the statement must (c) ‘include a brief statement of the cultural heritage significance of the place or object’.

First permit application

On 17 March 1991, the applicant and her husband made the first application for a permit, relying on the plans prepared by her architect referred to above,[7] which showed a two storey extension located above the 1952 extension to the northern part of the house. On 28 May 1991, a meeting of the permits committee was attended by the applicant and her architect, and representatives of the Trust and the Camberwell City Council. After hearing submissions, the Committee refused the application on the grounds that:

1.The proposal would affect the architectural and historic importance of the house; and
2.No substantial evidence has been put forward to demonstrate the extent to which the application if refused would affect the reasonable and economic use of the building or land or would cause undue hardship to the owner in relation to the building or land.[8]

[7]See [13] above.

[8]Reasons [23].

The Committee further resolved that the applicant be invited to lodge a new application for the future accommodation requirements of the family, to be satisfied by a building erected at the northern end of the property but separated from the house in such a design which clearly defines the old and new buildings.[9]
[9]Reasons [24].

Second permit application

On 9 September 1991, the applicant lodged a second application for a permit, (dated 6 September 1991) assisted by a member of the Committee. This time the proposal was for a single building comprising two double storey two bedroom units located to the north of the 1952 extension. On 13 September 1991, a permit for the proposal numbered 1427D was issued,[10] replaced subsequently by a slightly amended permit 1614 dated 13 August 1992.
[10]Reasons [26].

By letter dated 30 September 1991 to the applicant, the Minister informed the applicant that he had decided to accept the HBC’s recommendation to add the property, including the house, to the 1981 Register, and that he had decided to uphold the decision to refuse the first application.

Notice that the property including the house had been added to the 1981 Register as Historic Building No 879 appeared in the Government Gazette dated 2 October 1991.[11]
[11]Reasons [27].

The applicant’s affidavit referred to a letter to the applicant dated 4 September 1991 in which the Director of the HBC summarised the situation. He referred to what he described as the three main issues to be resolved, the first being the unresolved appeal to the Minister from the refusal of the first application, the second being the second application for a permit for two double storey units, and the third the ongoing maintenance and restoration of the house. Dealing with the third issue, he said:

The final issue is one primarily for you, the owner, but as indicated, we are prepared to assist you in identifying solutions to particular problems and establishing a sense of direction for works. To that end it seems that we should pursue the following strategy:
·assemble existing information on the form and design of the building. This would include original drawings, specifications, etc.
·adopt an agreed policy for the ongoing restoration and development of the building and site.
·develop a schedule of works for maintenance and restoration.

We will do some work on the first and as a consequence produce the second. I believe that it would then be appropriate for you to employ a consultant (it may be your architect) to work with us in producing the schedule of works.
I believe that we both share an understanding of the significance of this place and therefore we should continue to work towards its conservation.

The applicant and her husband allowed the permit to lapse when she and her husband considered engineering advice[12] concerning the significance of the fact that the ground under the concrete slab on which the 1952 extension had been constructed and the ground to the north, on which it was proposed to build the two double storey units, consisted of uncompacted or badly compacted fill, in places more than six metres deep. In her affidavit, the applicant described the concern of her husband in this regard.
[12]Reasons [28]–[29].

Period of absence

Between 1991 and 1999, the applicant and her husband were away from Melbourne, and the property including the house was often unoccupied.

In 1995, the 1981 Act was replaced by the Act. The first respondent became the successor of the HBC. Under ss 18 and 19(b), all places registered on the 1981 Register under the 1981 Act were required to be recorded in the Register maintained by the second respondent. The property including the house became a ‘registered place’ as defined in s 3 of the Act, under the name ‘Heritage Place 879’. Permit applications were required to be made to, and determined by, the second respondent.

Roof over the 1952 extension

On 4 May 1999, shortly after the applicant and her husband had returned to Melbourne, the applicant was at the property with a contractor examining the iron roof which had been constructed over the original bituminised sheeting roof some time after the period during which Boyd owned the property. Part of the iron roof over the 1952 extension to the northern end of the house, which was not well secured, gave way and slid to the ground, exposing the interior of this part of the house to the weather. This led to discussions between the applicant, her architect, and the Executive Director, with regard to the preparation of a third permit application, for an overall proposal by the applicant and her husband for alterations and extensions to the house.

Third permit application

The applicant’s third application, dated 15 July 1999, was in the early stages of preparation, but schematic plans had been produced, giving a general idea of what was proposed. In particular, the proposal involved demolition of the 1952 extension to the northern end of the house, and new construction in its place.

On 15 July 1999, the applicant and her husband made their third application. On 31 August 1999, the application was refused on four grounds. The primary judge summarised those grounds as follows:

(a)The 1952 extension was an integral component of the significance of the registered place for reasons including the following:
(i) it was designed by Robin Boyd for his family’s use;
(ii)it illustrated his philosophy at the time regarding planning small homes for growth;

(iii)it illustrated his interest in new technology to overcome the problems associated with difficult ground conditions.

(b)The proposed extension was much larger and would be more bulky than the former Robin Boyd house. It would be out of scale with the registered building and have an adverse visual effect on the setting of the registered place.
(c)There were options, other than demolition, to overcome the concerns that were raised by the physical condition of the northern extension.
(d)The project brief was extensive and included specific requirements, including an enclosed pool, specific bedroom arrangements on the ground floor and servant accommodation. This would result in a proposed addition that would be so large as to require demolition of part of a registered building.[13]

The last sentence of the fourth ground in the Notice of Refusal to Grant a Permit was as follows: ‘Achievement of the brief in its present form is not supported ahead of the retention and reinstatement of the 1952 extension’.

[13]Reasons [32].

Before the application was refused, the officer who investigated and made a recommendation in respect of the fourth application made the following observation in his report: ‘Is there a Conservation Plan? No and it is desirable that one be prepared before any new work is proposed’.

On 31 October 1999, the applicant and her husband appealed to the Heritage Council against the refusal of the Executive Director. On 3 March 2000, the decision of the Executive Director was confirmed by the Heritage Council’s Permit Appeal Committee (‘PAC’).

In September 1999 and March 2000, the Executive Director issued Show Cause Notices and Repair Notices requiring the weather-proofing of the 1952 extension and the replacement of the missing roof and also repairs to the walls and structural slab. The plaintiff sought guidance from the Executive Director as to what might be acceptable.[14]
[14]Reasons [36].

Supreme Court proceedings

On 14 April 2000, the applicant commenced proceeding 5090 of 2000 in the Supreme Court against the respondents, seeking mandamus-type orders for the removal of the 1952 extension from the Register.

On 28 November 2000, the Executive Director (being the second respondent in this proceeding) commenced proceeding 6226 of 2000 in the Supreme Court seeking orders against the applicant and her husband pursuant to div 2 of pt 8 of the Act for certain repairs itemised in Show Cause Notices and Repair Notices served on the applicant and her husband, and in particular for an order requiring the applicant and her husband to reinstate the roof of the 1952 extension.

Fourth and fifth permit applications

In the meantime, on 25 July 2000, the applicant made her fourth and fifth applications.

Application P5041 sought permission for a proposal involving demolition of the 1952 extension and its replacement by a modified attached extension.[15] P5041 was refused on the same grounds relied on for refusing the third application.[16]
[15]Reasons [38].
[16]Reasons [39].

Application P5042 sought permission for a similar proposal involving retention of the 1952 extension. On 28 November 2000, P5042 was granted. Permit P5042 was issued containing Condition 2, which required preparation of a CMP in respect of the property. Condition 2 provided:

The CMP will be prepared by a recognised heritage consultant in accordance with the Burra Charter and will include policies for the design of the addition, landscaping work, the treatment of the interior of the registered place and any other issues associated with subsequent approvals under this permit. The CMP is to be submitted for the approval of the Executive Director prior to the commencement of the permitted works.[17]
[17]Reasons [42]. The officer report relating to each application repeated the comment made in respect of the third application ie ‘Is there a Conservation Plan? No and it is desirable that one be prepared before any new work is proposed.’

Consent orders in the Supreme Court proceedings

On 12 February 2001, orders were made in the Supreme Court (Balmford J) adjourning both proceedings. In proceeding 5090 of 2000, the respondents (in this proceeding) were ordered to have a CMP for the property, including the house, prepared by Mr Roger Beeston, or some other suitably qualified architect.

In proceeding 6226 of 2000, the defendants (being the applicant in this proceeding and her husband) were required amongst other things to comply with recommendations in the CMP to be prepared, and to carry out certain itemised repairs whereupon the plaintiff (being the second respondent in this proceeding) could discontinue the proceeding. Orders were made by consent that the applicant and her husband:

must cause the works specified in Items 1 to 6 inclusive of the Perrett Simpson Pty Ltd report dated 6 February 2001 to be carried out forthwith.
and
If, on or before 29 June 2011, the [applicant and her husband]:
(a)comply with each of the recommendations contained in Items 7 to 13 inclusive of the report dated 6 February 2001 of Perrett Simpson Pty Ltd (‘the Simpson recommendations’); or
(b)comply with the recommendations contained in the conservation management plan, to be prepared pursuant to orders made this day in proceeding No. 5090/00, which relate to the subject matter of the Simpson recommendations, or
(c)comply with directions given by the Executive Director of the Heritage Council which relate to the subject matter of the Simpson recommendations.

whichever is the most appropriate, the Plaintiff [the Executive Director] shall forthwith discontinue this proceeding.[18]
[18]Reasons [47].

Conservation Management Plan

A CMP dated 4 September 2001 prepared by Mr Beeston was tendered in evidence.[19] In preparing the CMP, the author, recognised by the parties as suitably qualified, adopted the process espoused by the Burra Charter. He set out the Guidelines in full in Appendix A of the CMP.
[19]Reasons [49]-[54].

The applicant referred this Court to the CMP (at 8.4.2.1) dealing with the future of the 1952 extension under the heading: ‘Urgent Conservation Works’, which said: ‘The suitable course of action for this section of the building, which is currently in poor condition and uninhabitable, is problematic.’ Under the heading: ‘Recommendations for the Future Use of the Site’, the applicant also referred to where the CMP said (at 8.5.5):

Whether reconstruction is warranted is an important issue and must be considered in the light of an overall redevelopment strategy where an effective and balanced wholistic [sic] approach is taken to the site incorporating conservation objectives and the need for amenity of the occupants/owners.[20]

[20]Emphasis in original.

The applicant duly discontinued proceeding 5090 of 2000.

In March 2002, proceeding 6226 of 2000 was heard in the Supreme Court (Balmford J). In her reasons for judgment dated 23 April 2002, the judge ordered that the applicant and her husband carry out works, including the reinstatement of the roof over the 1952 extension.[21]
[21]Tonkin v Rajendran (2002) 124 LGERA 1. On 5 April 2004, the Court of Appeal dismissed an appeal by the applicant from the decision of Balmford J: Rajendran v Tonkin (2004) 9 VR 414 (Buchanan and Eames JJA and Morris AJA).

Sixth permit application

On 2 October 2001, the applicant and her husband made their sixth application.[22] The permit application, like the third permit application, required the demolition of the 1952 extension. On 29 January 2002, the Executive Director refused the application on the same grounds that had been relied on in response to the third application.[23]
[22]Reasons [57].
[23]Reasons [58].

On 25 June 2002, on appeal by the applicant against the refusal of the Executive Director to permit demolition of the 1952 extension, the PAC confirmed the Executive Director’s decision.

The applicant sought judicial review in the Supreme Court in respect of the decisions of the Executive Director and that of the PAC on the sixth application.[24]
[24]Proceeding 5901 of 2002 (decision of Executive Director) and 6472 of 2002 (decision of PAC.)

On 20 December 2002, the Court (Smith J) set aside the decision of the Executive Director and that of the PAC.[25] Smith J held that the decisions on the sixth application should be set aside on the following grounds:
[25]Rajendran v Tonkin [2002] VSC 585. Reasons [66].

(a) the Chairman of the Committee of the Heritage Council charged with the consideration of the sixth application should have disqualified himself on the grounds of apprehended bias;

(b) the applicants had been denied a fair hearing because they were not permitted to call evidence concerning the degree of heritage significance attaching to the 1952 extensions; and

(c) the Committee had erred in law in proceeding on the basis that all were bound by the ‘Statement of Significance’ and that the issue of the significance of the house and its extension could not be revisited.

Smith J said:

From a practical point of view, the Statement of Significance will normally be the starting point for any assessment of the significance of the premises at the time of any application and any applicant for a permit who wishes to suggest a redefinition of the significance would need to advance evidence and argument to suggest that something had been overlooked originally or had changed since the property went on the Register. Thus to allow parties seeking permits to revisit the Statement of Significance should not be a matter of major practical concern. In any event, as I have said, the Act requires the issue to be considered as at the date of the application for the permit.[26]

[26]Rajendran v Tonkin [2002] VSC 585 [52]. The evidence in the present application does not permit any findings to be made as to the reasons that the applicant did not pursue her sixth application after the original decisions on it had been quashed.

At the end of his reasons, Smith J said:

Finally I note that the applicants have filed a further permit application which does not involve demolition of the 1952 extensions. This would appear to be an alternative to the present application should the present application, if reheard, be unsuccessful.[27]

[27]Ibid [59].

The applicant had some recollection of making a further application for a permit but was not sure that she had.[28]
[28]Reasons [67]. In his reasons, the primary judge recorded that the applicant had said that she was ‘totally exhausted and disheartened by the ... train of events’: ibid.

Further correspondence after hiatus

There was then a hiatus of about a decade.

By letter dated 16 September 2013 to the Executive Director for Statutory Planning and Heritage, the applicant wrote:

By insisting to the present day that the house and the property should not be compromised yet over the same period by not indicating how (if at all) this result will be achieved, the Executive Director (and you as his successor) have caused me to suffer financial hardship which is continuing and will continue unless and until the situation is remedied … I may not make another permit application for a new proposal; however that does not mean that you should not produce a viable management plan. Because of the uncertainties resulting from the absence of a viable management plan identifying the way forward, the property has been unsaleable other than by a ‘fire sale’.

By letter dated 2 October 2013, the (acting) Executive Director said, amongst other things, that, if a further permit application were made, it would be appropriate for him to consider it. In that letter, he said:

As you would no doubt be aware, places on the Register are reserved for those places and objects considered to be important to Victoria as a whole. Your property is significant as the earliest known extant residence designed by the renowned Australian architect Robin Boyd. It is unique in being a house that Boyd designed for his personal use and occupied and extended over a period of twelve years. All of the property is listed and the statement of significance particularly refers to the alterations Boyd undertook to the house. I must therefore consider all elements of the property as significant, including the 1952 addition, when assessing permit applications.
I am aware that a number of permits have been issued since 1991 which would allow the use of the place as a family residence and that you have decided not to carry out any of the approved schemes. The Conservation Management Plan prepared by Roger Beeston and Associates sets out a number of principles to guide future development at the property and it would be appropriate for me to consider that document should another application for permit be lodged.
I share your concern regarding the material condition of the property and can confirm that section 160 of the Heritage Act 1995 requires that an owner not allow a property to fall into such disrepair that its conservation is threatened. The Executive Director is unlikely to approve demolition of a property simply because an owner has failed to maintain the property adequately since purchase or since its inclusion on the Register.

The present proceeding

By Originating Motion in Form 5C filed in the Supreme Court of Victoria on 2 April 2015, the applicant applied for the following orders against the Heritage Council established under pt 2 of the Act:

Orders in respect of the relief and/or remedies set out below:
A.An order that the [Heritage Council] forthwith remove the subject property [664-666 Riversdale Road Camberwell in the State of Victoria] from the Victorian Heritage Register.
B.A declaration that the [Applicant] is not liable under Section 64 of the Heritage Act 1995 for:
a.        removing or demolishing;
b.        damaging or despoiling;
c.        developing or altering; or
d.        excavating;
all or any part of the dwelling house or the 1952 extension at 664-666 Riversdale Road Camberwell.
C.A declaration that the [Applicant] is not liable under Section 160 of the Heritage Act 1995:
a.for allowing the dwelling house or the 1952 extension at 664-666 Riversdale Road Camberwell to fall into disrepair;
b.for failing to maintain the dwelling house or the 1952 extension at 664-666 Riversdale Road Camberwell to the extent that its conservation is threatened.

D.A declaration that the [Applicant] is not liable under Section 161 of the Heritage Act 1995 to carry out any works which are necessary to prevent further deterioration in the condition of the dwelling house or the 1952 extension situated at 664-666 Riversdale Road Camberwell.

E. Costs.

The applicant’s submissions before the primary judge

In support of her contention that the property, including the house, should be removed from the Register, the applicant submitted that, at no stage during the process of registration, nor at any time throughout the period which has subsequently elapsed since registration, have the respondents or their predecessors under the 1981 Act taken any or sufficient steps to ascertain accurately or monitor the physical condition of the house, or to maintain it, nor have they given any or sufficient indications to the applicant, as to what works would be necessary to maintain and preserve it. On the basis of Murdesk Investments Pty Ltd v Roads Corporation,[29] the applicant submitted that she was entitled to a mandamus-type order requiring the property including the house to be removed from the Register, because (a) the property is serving no heritage purpose; (b) it is unsaleable even at ‘fire sale’ prices; and (c) she is unable to occupy or rent the house.
[29][2005] VSC 39 (Gillard J).

The applicant has never made any application under s 54 of the Act to remove the property from the Register.

The second respondent submitted that the proceeding was misconceived. He said that mandamus could not compel the respondents to remove the property from the Register. The statutory process under s 54 had never been engaged. He also contended that (a) under the scheme responsibility for maintaining the property lies with the owner and (b) the application for mandamus was out of time.

The decision below

The primary judge upheld the respondents’ submissions.[30] He held that the applicant had not established that the respondents had failed to perform a statutory duty according to law, and that this was not a case in which there was a clear indication that the respondents will not perform their statutory duties. He also held that the time for directly or indirectly challenging the inclusion of the property on the Register had long since expired.[31] The primary judge said that he was not persuaded that the declarations sought by the applicant should be made. In particular, he said that: ‘There were no facts agreed or proved as to the present condition of the house, or its condition at previous times, that would enable the Court to make the declarations sought’.[32]
[30]Reasons [97]–[100].
[31]Reasons [102].
[32]Reasons [104].

On 18 May 2016, the primary judge made standard costs orders in favour of the second respondent and appointed Mrs Anashuya Lewis as litigation guardian for the applicant.[33]
[33]See Rajdendran v Heritage Council [No 2] [2016] VSC 286.

Proposed grounds of appeal

The applicant has proposed the following grounds of appeal:

1Although accepting[34] the principles relating to mandamus-type orders enunciated in Murdesk Investments Pty. Ltd. v Roads Corporation[35], the primary judge wrongly ignored or rejected the conduct of the respondents complained of by the applicant, by virtue of which she contended that the respondents had declined to perform their statutory duties under the 1995 Act or misunderstood the nature of such statutory duties. Notwithstanding that the applicant had not made an application pursuant to s 54 of the Heritage Act 1995, he wrongly held:
(a)that the applicant had not established that the respondents failed to perform a statutory duty according to law, and that a mandamus-type order for the removal of the property including the house from the Register could or should not be made, because the preliminary steps required by s 54 of the Heritage Act 1995 to be taken before the respondents could remove a place from the Register had not been taken;[36]
(b)that, if an application were made by the applicant under s 54 to remove the property from the Register, there was no basis on the evidence for concluding that they would not consider and determine the application impartially;[37]

2.The primary judge wrongly held that this was not a case where there is a clear indication that the Executive Director or the Heritage Council will not perform their statutory duties.
[34]Reasons [89]-[96].
[35][2005] VSC 39 (Gillard J).
[36]Reasons [97]-[98].
[37]Reasons [99]-[100].

Contentions of the applicant

In her written submissions, the applicant referred to ‘the registration process’ whereby the property came to be registered under the 1981 Act and had its registration continued under the Act. She said that, at no time ‘during or following the registration process’:

(d) has an assessment been made of the physical condition of the property including the house, nor has the physical condition of the house been monitored;[38]
[38]In oral submissions, the applicant said that the Heritage Council was under a duty to tell her what was needed to be done to maintain the building. When pressed as to the source of this duty, the applicant said that it was implied in div 2 of pt 8 (particularly s 161) of the Act which provides for the making of ‘repair orders’.

(e) has a conservation policy for the conservation of the cultural significance of the property including the house been prepared or determined;

(f) has a plan for the preservation, restoration, reconstruction, and/or adaptation of the house been adopted;

(g) has a conservation management plan incorporating all of the above been adopted;

(h) have any guidelines, instructions, or any information or advice, been offered or given to the applicant, with regard to the nature and/or extent of any alterations and/or extensions to the house which would be compatible with the cultural significance of the house, and therefore within the parameters which would be acceptable in the event of a permit application being made for alterations and additions to the house;

(i) has the Executive Director taken any steps:

(i) to comply with the Burra Charter;

(ii) to carry out any of the steps referred to in (a) to (e) above;

(iii) to review and replace the Statement of Significance prepared by the HBC, (which was insufficient and/or unsatisfactory, as can be demonstrated by comparing it with the recommended statement of significance set out in the CMP);

(iv) to properly and reasonably maintain the property and the house, and in particular their cultural heritage significance while they remain on the register;

(v) to determine the applicant’s third, fourth, fifth, and sixth permit applications, by reference to, or consideration of any:

(a) assessment of the physical condition of the property or monitoring of the house;

(b) conservation policy for the conservation of the cultural significance of the property and the house;

(c) plan for the preservation, restoration, reconstruction, and/or adaptation of the house;

(d) conservation management plan or overall redevelopment strategy;

(e) guidelines, instructions, or any information or advice, offered or given to the applicant, with regard to the nature and/or extent of any alteration and/or extensions to the house which would be compatible with the cultural significance of the house.

The applicant said that the Executive Director determined her third, fourth, and fifth applications for a permit, thereby affecting the reasonable or economic use of the house, notwithstanding that he was unable to determine them properly or reasonably.[39] The applicant said that the Executive Director had determined the sixth application without any or sufficient regard for or to the CMP dated 4 September 2001 which by then had been prepared, and, in particular, without developing an overall redevelopment strategy as recommended by the author of the CMP. She said that, by reason of the foregoing, particularly their failure to comply with the Burra Charter, the respondents have failed to act fairly and reasonably in accordance with their duties under the Act in relation to: (a) the maintenance and conservation of the property and the house and (b) the determination of her applications.[40]
[39]The applicant said this was demonstrated by the repetition of the statements in the officer reports: ‘Is there a Conservation Plan? No and it is desirable that one be prepared before any new work is proposed.’
[40]In her written submissions, the applicant referred to various ways in which she said the Executive Director had failed to comply with the Burra Charter.

The applicant elaborated upon this in oral submissions. She said that, under the 1981 Act, the requirements that had to be satisfied before a building could be placed on the 1981 Register were rudimentary compared with the procedures under the Act for placing a building on the Register. As noted, a ‘Statement of Significance’ had been prepared but it made no reference to the physical condition of the building; rather, it referred only to the fact that the house had been designed by Robin Boyd. She compared s 18(7) of the 1981 Act with what she said were the duties of the Heritage Council to develop and publish ‘assessment criteria to be used in considering the cultural heritage significance of places and objects and determining whether those places or objects warrant inclusion in the Heritage Register’: s 8(1)(c). The assessment criteria that had been published under the Act included the Victorian Heritage Register Criteria and Threshold Guidelines (endorsed by the Council on 6 December 2012 and reviewed and updated on 5 June 2014). Those criteria made frequent reference to the Burra Charter. They mandated the preparation of a CMP in respect of a building placed or proposed to be placed on the Register. The criteria and the plan required consideration to be given to the fabric of the building. When it was enacted, s 19(b) of the Act placed on the Register all buildings that had been placed on the 1981 Register under the 1981 Act. As a result, the applicant’s property had never had the consideration mandated by the Act. In particular, no consideration had been given to the fabric of the building or its ‘cultural heritage significance’.

Looking ahead, the applicant said that, as long as this situation continues in relation to the property and the house, future applications such as permit applications and applications pursuant to s 54 of the Act for the removal of the property and the house from the Register, will be determined by the respondents in exactly the manner complained of above (ie without the benefit of a CMP), and accordingly improperly and unreasonably as they had been previously. The applicant submitted that that probability was confirmed by the contents of a letter from the applicant to the Executive Director dated 16 September 2013 and his reply dated 2 October 2013 which had failed to address her criticism that, if a further permit application were made, the absence of any information relating to the condition of the house, but more importantly, the absence of a CMP, would effectively prevent a fair or just result. The applicant accepted that she had never made an application under s 54(2) of the Act to remove the property from the Register. Given the continuing failure of the respondents, she claimed it would be pointless for her to have done so as it was inevitable, given the sequence of events since the building was automatically included on the Register under the Act, that the Heritage Council would not exercise its powers according to law. The applicant identified the source of the respondents’ obligations to monitor the property in ss 160-168 of the Act.

Given the time that had elapsed since the property was placed on the Register and the changes in its physical condition, the applicant said that it would not be practicable or sensible to attempt to redress or remedy the situation as it existed at the time it was registered. The only sensible course would be to assess its physical condition now. That being the case, the only practicable method of resolving the matter would be to order the removal of the property including the house from the Register, leaving it open to the respondents should they wish, to consider whether having regard to the physical condition of the house now, they still wish to add it to the Register. For these reasons, she submitted that, because it would be unfair in any event to remit the matter to the respondents for further consideration, the order sought in the originating motion, namely for removal of the property and the house from the Register, would be appropriate.

The applicant said that the primary judge appeared to have confused the powers of the Heritage Council under s 54 to remove a property from the Register, with his own powers to make a mandamus-type order where it can be shown that the respondents have failed to perform a statutory duty according to law, in this case by reason of the continuing failure on the part of the second respondent to remedy the continuing situation complained of above in paragraph [62] above.

Contentions of the second respondent

In his submissions, the second respondent reiterated the submissions he made before the primary judge and said the application should be refused as: (1) mandamus is only available where there had been a refusal or failure to perform a duty; (2) the applicant had not made any application under s 54 of the Act for removal of the property from the Register; and (3) the present application was time barred.[41] He also pointed out that:
[41]Order 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides: (1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. (2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding. (3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

(j) several of the applicant’s permit applications had been successful;

(k) the applicant’s contentions that ss 160-168 of the Act imposed an implied duty upon the respondents to monitor and maintain the property had not featured in the argument before the primary judge or in the proposed grounds of appeal or in the relief that she was seeking;[42]
[42]The second respondent referred to Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.

(l) the existence of the implied duty was inconsistent with:

(i) s 160 of the Act which placed the burden of the maintenance of a heritage property upon the owner; and

(ii) s 161 which was permissive.

Contrary to the submissions of the applicant, the second respondent said that there had been an examination of the physical condition of the building when it was placed on the 1981 Register under the 1981 Act. He described the operation of the Act when an application was made under s 54 for the removal of a property from the Register; the same considerations relevant to a decision to place a property on the Register were relevant in an application for removal. In particular, he referred to ss 23 (especially s 23(4)(b)), 32, 38 (especially s 38(3)) and 42.[43]
[43]Each of these provisions is in div 2 of pt 3 of the Act. On their face they refer to the procedure for registration. However, s 54(2) requires that, on an application for removal, the sections be ‘transposed’ so that they refer to the procedure to be followed on an application for removal.

Analysis

The present application is an application for leave to appeal the order of the primary judge. Section 14C of the Supreme Court Act 1986 provides:

The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.

In Kennedy v Shire of Campaspe,[44] the Court said:

In our view, if an appeal does not have a real prospect of success, the Court cannot grant leave even if, for example, there is some other compelling reason why the appeal should be heard or a matter of public importance is at issue.
Attention must be focussed on the words ‘real prospect of success’ used by the statute. Bearing that in mind, those words should be construed consistently with this Court’s interpretation of s 63 of the Civil Procedure Act. That is, the Court may only grant leave where the appeal has a ‘real’ as opposed to a ‘fanciful’ chance of success. This also accords with the interpretation given to the same words in the UK Civil Procedure Rules relating to appeals.
Naturally, there will be some cases where the prospects of the appeal are strong, others where the prospects are weaker but it cannot be said that they are fanciful, and others where the prospects are fanciful. For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two. Nor is it useful to devise other categories using terminology deployed in other situations.
There are, of course, some different considerations that may play a part in the exercise of the Court’s residual discretion to refuse leave, even where the appeal has a real prospect of success. For example (and without limiting the possibilities), there may be cases where even though the prospects of the appeal are real, no substantial injustice will be done if the decision stands. This may be particularly so when the appeal is from an order as to practice and procedure. No such considerations are at play in this case.[45]
[44] [2015] VSCA 47 (Whelan and Ferguson JJA).
[45] Ibid [11]-[14].

The scheme of the Act

Section 1 of the Act sets out the main purposes of the Act. They include to provide for the protection and conservation of places and objects of cultural heritage significance and for the registration of such places and objects.[46]
[46]Section 1(a).

Section 6 provides for the establishment of the Heritage Council. The functions of the Heritage Council are set out in s 8(1). They include to add or remove places or objects from the Register and also to amend the registration of places or objects (s 8(1)(d) and (e)).

Section 14 establishes the office of Executive Director. Section 15 sets out the functions of the Executive Director, which include to establish and maintain the Register.[47]
[47]Section 15(a).

Part 3 concerns the Register. Divisions 2-5 set out the process by which a place may be included in the Register.

As mentioned, the property was previously included on the ‘Historic Buildings Register’ (under the 1981 Act). Following the commencement of the Act, the property was included on the Register by operation of s 19(b). A place that is included on the Register is described in the Act as a ‘registered place’.[48]
[48]See definition in s 3.

The inclusion of a place on the Register has a protective purpose and gives rise to a number of requirements under the Act.

First, certain activities are prohibited in respect of a registered place unless a permit has been obtained. Section 64(1) provides:

Certain activities prohibited
(1) A person must not —
(a) remove or demolish; or
(b) damage or despoil; or
(c) develop or alter; or
(d) excavate —

all or any part of a registered place.
Penalty: In the case of a natural person:
2400 penalty units or imprisonment for 5 years or both.
In the case of a body corporate:
4800 penalty units.

This prohibition will not apply to works carried out in accordance with a permit issued under pt 4 (s 64(4)). The process for seeking a permit is set out in that part. In summary it requires, inter alia, an application to be made to the Executive Director (s 67), the public display of that application (s 68), and the opportunity for ‘any person’ to make submissions (s 69). Section 73 then sets out the matters that the Executive Director must consider in deciding whether to grant a permit.

Second, s 160 places obligations upon the owner of a registered place or registered object. It provides:

Registered place or object — disrepair and failure to maintain
The owner of a registered place or registered object must not —
(a) allow that place or object to fall into disrepair; or
(b)fail to maintain that place or object to the extent that its conservation is threatened.

The Executive Director may require a person that has allowed a registered place to fall into disrepair, or that has failed to maintain a registered place, to perform remedial works.[49]
[49]Sections 161 and 162. Division 3 of pt 8 confers jurisdiction on the Supreme Court in the event of contravention of the Act.

Section 54 provides for the removal of a property from the Register. It provides:

Amendment or removal of item on Heritage Register
(1)The Heritage Council may amend an item in or remove an item from the Heritage Register.
(2)Divisions 2 to 4 and this Division apply to an amendment or removal in the same way as those Divisions apply to a registration. …

The effect of s 54(2) is that divs 2-4 in pt 3 of the Act apply to the removal of a place from the Register in the same way as they apply to a registration.

The relevant steps, when transposed for the application for the removal from the Register rather than the inclusion of a place, include: the nomination of the place for removal;[50] the Executive Director’s consideration of the nomination and recommendation to the Heritage Council;[51] the public notification of the Executive Director’s recommendation;[52] the opportunity for ‘any person’ to make submissions to the Heritage Council;[53] and in some cases the opportunity for further submissions or a hearing by the Heritage Council.[54]
[50]Section 23.
[51]Section 32.
[52]Section 35.
[53]Section 38.
[54]Sections 39–41.

As the second respondent submitted, these steps afford multiple opportunities for information to be gathered and for persons to be heard in respect of a nomination for removal.

Section 42(1) empowers the Heritage Council to make a decision as to whether the place should be removed from the Register. That power may only be exercised by the Heritage Council ‘after considering’ any recommendation or submissions, and conducting any hearing into those submissions. Section 42(1) provides:

Decision of Heritage Council
(1)After considering a recommendation in respect of a place or object and any submissions and conducting any hearing into those submissions, the Heritage Council may -
(a)determine that the place or object is of cultural heritage significance and should be included in the Heritage Register; or
(b)in the case of a recommendation in respect of a place, determine that part of the place is of cultural heritage significance and should be included in the Heritage Register; or
(c)determine that a place or object or part of a place is not of cultural heritage significance and does not warrant inclusion in the Heritage Register; or
(d)in the case of a recommendation in respect of a place, refuse to register the place and –
(i)refer the recommendation and submissions to the relevant planning authority for consideration for an amendment to a planning scheme; or
(ii)determine that it is more appropriate for steps to be taken under the Planning and Environment Act 1987 or by any other means to protect or conserve the place.

Application for an order in the nature of mandamus

In so far as the present application should be seen as a free standing application for an order in the nature of mandamus, it has no reasonable prospects of success.

First, under the Constitution of Victoria, the powers of government are distributed between Parliament, the Executive and the Courts. Provision for ‘the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects’[55] are matters for Parliament. It has delegated its powers to the Executive in various of its manifestations. It has not delegated that authority to this Court. The Supreme Court does not have any general supervisory jurisdiction over the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects. In particular, Parliament has delegated the decision whether to place a property on or remove a property from the Register to the Heritage Council; it has not delegated that power to this Court.
[55]The Act, s 1(a).

Second, exercising what is called ‘judicial review’, the Supreme Court has supervisory jurisdiction in respect of decisions delegated by Parliament to statutory office holders. A party may always apply to the Court for judicial review where it is contended that such an office holder is acting outside or in defiance of the powers that have been delegated or is otherwise abusing the exercise of such delegated powers. Necessarily, any such application must identify which powers have been delegated and how it is said that they have been either exceeded or abused or exercised without the giving of procedural fairness and so forth. Where a delegate of Parliament: (a) has proceeded to make a decision that is outside the powers that have been delegated to it by Parliament; (b) has made the decision in breach of the conditions governing the exercise of the decision; or (c) has breached the rules of procedural fairness in the making of the decision, the Court will make an order in the nature of certiorari quashing the decision. More often than not, it is necessary for the decision still to be made and the Court will remit the decision to the delegate authorised by Parliament to make it in order that it be made according to law.

As has been said repeatedly in these reasons, the applicant has not made an application for the removal of the property pursuant to s 54 of the Act. In R v War Pensions Entitlement Appeal Tribunal[56] Rich, Dixon and McTiernan JJ said:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him.[57]

[56](1933) 50 CLR 228.

[57]Ibid 242.

Where an application for mandamus is successful, the order of the court will mirror the duty that has not been performed. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd,[58] the Court said: ‘Mandamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty.’[59]
[58](1989) 167 CLR 513 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ).
[59]Ibid 515.

The applicant has failed to satisfy the essential pre-condition for an order for mandamus by this Court for removal from the Register as she has failed to demonstrate that the respondents have refused or failed to perform their alleged duty to remove the property from the Register because they have never been invited to so remove the property. In so far as the applicant sought to identify the powers under ss 160-168 of the Act as unperformed, and rely upon that non-performance to support an order for mandamus, this reliance cannot now be permitted as those powers were not relied upon at trial, as counsel for the applicant readily conceded. We accept the submission of the second respondent that had those powers been relied upon at trial, the course of evidence may well have been different.

Furthermore, in the present case, the primary judge was right to reject the contention of the applicant that the Court itself had some freestanding power, outside the Act, to remove the property from the Register. It has no such power. Such powers as it has can be called in aid only in respect of the exercise by the Heritage Council of its powers under the Act.

The present application does not involve any application that there be judicial review of the disposition of the earlier applications.[60] Rather, it seems that the applicant has despaired of her efforts to get a permit to alter or renovate the property and now wants it removed from the Register so that she can deal with it uninhibited by the restrictions that its presence on the Register has imposed. There is a power to have a property removed from the Register. However, Parliament has delegated that power to the Heritage Council, not to the Court. Even the Heritage Council lacks a freestanding power of removal. It only has power if it conforms with the conditions laid down in div 2 of pt 3 of the Act. As Smith J pointed out in Rajendran v Tonkin[61] ‘the Statement of Significance will normally be the starting point for any assessment of the significance of the premises at the time of any application’.[62] There

is here no basis for the contention of the applicant that, however the Heritage Council exercises its powers under s 54, it is bound to misconceive them. Without doubt, the exercise of the power of removal must be exercised according to law. If it is said that the Heritage Council has not proceeded according to law, the Court can be asked to review what the Council has done. But, the Court cannot itself exercise the power of removal or order the Council to remove the property from the Register. If there had been an application for removal and it had not been conducted according to law, the Court might order that the Council consider that application according to law. But as noted above, the applicant has not applied for the removal of the property from the Register.[63]

[60]Judicial review is discretionary. It seems more than likely that any attempt now to seek judicial review of the earlier decisions would fail for having been out of time.

[61][2002] VSC 585 [52].

[62]See [49] above.

[63]Of course, the grant of prerogative relief is discretionary. See eg Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, 107-109 [55]-[60] (Gaudron and Gummow JJ). The presence of s 54 and the fact that it has never been invoked would be another reason for declining the applicant the relief that she seeks in this proceeding.

The application for leave to appeal should be dismissed.

PRIEST JA:

Introduction

It is manifest that this application for leave to appeal was utterly hopeless. It should not have been brought. It must be refused.

In concluding that leave to appeal must be refused, I agree substantially with the reasons of Tate and Santamaria JJA — whose judgment I have had the benefit of reading in draft — but wish to make some observations of my own. Given their Honours’ thorough recitation of the essential facts, however, I am largely relieved of their recapitulation.

Discussion

Under s 14 of the Historic Buildings Act 1981 (‘the old Act’), on or about

2 October 1991, the Governor in Council amended the Register of Historic Buildings (‘the old Register’) by adding Historic Building No 879, to ‘the extent of all buildings known as the former Robin Boyd House, 664–666 Riversdale Road, Camberwell and all land [entered in the relevant Certificate of Title]’ (for convenience, ‘the house’), to the Register of Historic Buildings maintained under that Act.[64]

[64]Victorian Government Gazette, No G 38, Wednesday, 2 October 1991, 2734.

The old Act was repealed by the Heritage Act 1995 (‘the new Act’ or ‘the Act’), which created the Heritage Council,[65] the office of Executive Director[66] and the Victorian Heritage Register (‘the new Register’ or ‘the Register’).[67] Under s 19(b) of the new Act, the Executive Director was required to record in the Register those places that had been registered in the old Register under the old Act. Section 19(b) provides that:

The Executive Director must record in the Heritage Register—
…
(b)all places registered on the register of historic buildings under the Historic Buildings Act 1981 immediately before the commencement of this section; …

[65]Section 6.

[66]Section 15.

[67]Section 18.

Given the terms of s 19(b), it is plain that the legislature intended that, without more — such as, for example, any determination of ‘cultural heritage significance’[68] — all places recorded in the old Register were to be recorded in the new Register.[69]
[68]For example, see s 42.
[69]In oral argument, counsel for the applicant repeated several times that the house had been included in the new Register ‘arbitrarily’. As was pointed out to counsel, however, the house did not come to be recorded in the new Register as a result of arbitrary whim. Rather, by recording the house in the Register, the Executive Director was obeying the will of the legislature as manifested in s 19.

As Tate and Santamaria JJA have recounted, over many years there have been fraught relations between the applicant and the Executive Director and the Heritage Council, vis-à-vis the house. The Executive Director and the Heritage Council have not always had the upper hand, however, since the applicant enjoyed some success before Smith J in relation to the sixth permit application — which required demolition of the house’s 1952 extension — in that his Honour set aside the decision on that permit application in the applicant’s favour.[70] But as is clear, there was a hiatus of a decade or so between the decision of Smith J and the applicant’s letter to the Executive Director of 16 September 2013, which prompted the letter in reply dated 2 October 2013. It will be remembered that, in that letter in reply, the Acting Executive Director made several points, including that:
[70]Rajendran v Tonkin [2002] VSC 585.

· the house is significant as the earliest known extant residence designed by Robin Boyd;

· it is considered that all elements of the property are significant, including the 1952 extension;

· a number of permits have been issued since 1991 which the applicant has not acted upon;

· the Conservation Management Plan (‘CMP’) prepared by Roger Beeston and Associates sets out a number of principles ‘to guide future development’ and it would be appropriate to consider that CMP ‘should another application for permit be lodged’;

· s 160 of the Act requires an owner not to allow a property to fall into such disrepair that its conservation is threatened; and

· the Executive Director is unlikely to approve demolition of a property simply because an owner has failed to maintain the property adequately since purchase or since its inclusion on the Register.

That is where matters stood until the applicant issued an Originating Motion against the Heritage Council in April 2015, seeking the following relief:

· first, an order to remove the house from the Register;

· secondly, a declaration that the applicant is not liable under s 64 of the new Act for removing or demolishing; damaging or despoiling; developing or altering; or excavating; all or any part of the house (including the 1952 extension);

· thirdly, a declaration that the applicant is not liable under s 160 of the new Act for failing to maintain the house (including the 1952 extension), or for allowing it to fall into disrepair; and

· fourthly, a declaration that the applicant is not liable under s 161 of the new Act to carry out any works which are necessary to prevent further deterioration of the condition of the house (including the 1952 extension).[71]

[71]Costs were also sought.

At first blush, the first order sought in the prayer for relief was remarkable, in that the applicant had made no request that the Heritage Council remove the house from the Register pursuant to the powers reserved to it under s 54 of the Act.

Having failed to establish any entitlement for the relief sought in the Originating Motion before the trial judge,[72] the applicant filed an application for leave to appeal seeking two orders:

A.An order that the [Heritage Council] forthwith remove the [house] from the Victorian Heritage Register.
B.An order for the cost of the proceeding including the costs of the trial.

[72]Rajendran v Heritage Council [2015] VSC 732 (Ginnane J).

Again, at first blush, the first order sought appears somewhat ambitious, given the failure to request that the Heritage Council remove the house from the Register in the exercise of its statutory power under s 54. Undaunted by that failure, however, the applicant’s counsel sought to maintain that an order in the nature of mandamus ought to be made, so as to remove the house from the Register.

The grounds of appeal, as set out in the application for leave to appeal, were as follows:

1. The trial judge, although (at paragraphs 89 to 96) accepting the principles relating to mandamus-type orders enunciated by Gillard J in Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39, wrongly ignored or rejected the conduct of the Defendants complained of by the Applicant, by virtue of which she contended that the Defendants had declined to perform their statutory duties under the 1995 Act or misunderstood the nature of such statutory duties. Notwithstanding that the Applicant had not made an application pursuant to Section 54 of the Heritage Act 1995, he wrongly held:
a. (at paragraphs 97 and 98 of his reasons) that the Applicant had not established that the Defendants failed to perform a statutory duty according to law, and that a mandamus-type order for the removal of the property including the house from the Register could or should not be made, because the preliminary steps required by Section 54 of the Heritage Act 1995 to be taken before the Defendants could remove a place from the Register had not been taken;
b. (at paragraphs 99 and 100 of his reasons) that if an application were made by the Applicant under Section 54 to remove the property from the Register, there was no basis on the evidence for concluding that they would not consider and determine the application impartially;

2. The trial judge wrongly held (at paragraph 100 of his reasons) that this was not a case where there is a clear indication that the Executive Director or the Heritage Council will not perform their statutory duties.

In written submissions, counsel for the Executive Director contended that there was no basis for the grant of an order in the nature of mandamus, since mandamus is only available to command the fulfilment of some duty of a public nature which remains unperformed.[73] It was submitted that the power to remove a place from the Register is conferred by s 54 of the Act. There has been no application to remove the house from the Register under s 54(2), which prescribes procedural steps necessary for the Heritage Council to determine whether or not a place should be removed from the Register. It therefore could not be maintained that the Heritage Council had refused or failed to perform a duty to remove the house from the Register. For this reason the applicant’s claim could not succeed. Furthermore, it was submitted that the application for mandamus was out of time. The house was registered about 25 years ago, so that the time for directly or indirectly challenging the inclusion of the house on the Register has long since expired.
[73]Counsel cited R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 242 and Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513, 515.

In complementary oral submissions, counsel for the Executive Director contended that there were three principal reasons why this Court should refuse leave to appeal:

· first, mandamus only lies where there has been a refusal to perform a statutory duty; and, in this case, there has been no breach of statutory duty because the Heritage Council was not asked to remove the house from the Register in the exercise of its statutory powers under s 54;

· secondly, if there be a relevant statutory duty reposing in the Heritage Council, that duty is to determine whether or not the house should be removed from the Register; and

· thirdly, the relief sought by the applicant was out of time.

During oral argument, counsel for the applicant several times exhorted the Court to have regard to the principles set out by Gillard J in Murdesk.[74] In the event, counsel was taken to several passages from the judgment of Gillard J — which counsel accepted as correctly spelling out the applicable principles — including the following:[75]
[74]Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 (‘Murdesk’).
[75]Ibid [16]–[17] (emphasis in original).

The remedy of a mandamus-type order which is sought in the present proceeding, is a means by which, inter alia, a statutory authority is required to perform its duty. It is a discretionary remedy and may be withheld in the interests of justice.
The nature of the jurisdiction and the object of a mandamus-type order were considered by the High Court in The King v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd[76] where the Court said:
Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right:R v The Commissioners of Inland Revenue; in Re Nathan. The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner.

And also:[77]

The Court [in Ozone Theatres] listed examples of withholding such as if there was a more convenient and satisfactory remedy available, if no useful result would ensue, if a party had been guilty of delay or there had been bad faith on the part of the applicant. …

[76](1949) 78 CLR 389, 398 (‘Ozone Theatres’).

[77]Murdesk [19].

Counsel for the applicant also accepted as correct the following passages from Murdesk:[78]
[78]Ibid [20].

It is important to emphasise that the common law jurisdiction of this Court supervising the exercise or non-exercise by a statutory body of its power or duty, is not an appeal. The jurisdiction is limited, and where the order sought is in the nature of a mandamus-type order, the jurisdiction is only exercisable if it is established that the authority has refused to exercise its duty or power in accordance with the law. As a general proposition an authority would not be refusing to perform its statutory obligation merely because it performed its duty in a way that was contrary to the views of the party affected by the decision. The exercise of its authority may result in a decision which was contrary to the merits or the interests of a party but it could not be said that it had failed to act in accordance with its statutory duty. Mandamus-type orders are made where there is a clear case of refusal to exercise the duty in accordance with the law. This Court as a general rule is not concerned with the merits.

And:[79]

… It is necessary to prove that the body [performing a statutory duty] has refused to perform its statutory duty in accordance with the law. The supervisory jurisdiction is not on appeal. The court is not concerned with the merits. There must be proof that the statutory body has refused to exercise its powers or duty in accordance with the law. This has caused courts in the past to state a rule to the effect that it must be proven that a demand was made and there was a refusal to act. However, the issue is one of fact. …

[79]Ibid [22].

The applicant’s counsel acknowledged that his client could have asked the Heritage Council to remove the house from the Register in the exercise of its powers under s 54 of the Act, but she had not done so. When pressed by the Court to thus articulate the source of the statutory duty which remained unperformed, counsel’s submissions became something of a movable feast. As I understood his submissions, counsel first submitted that there was an implied statutory duty to ‘monitor’ a place on the Register to ensure that the place does not fall into disrepair, or has its conservation threatened by reason of a failure to maintain it, such implied duty arising out of ss 160 to 168 of the Act. Further pressed, however, counsel next suggested that the source of the relevant statutory duty might be found in s 8(1)(c) of the Act, which sets out the functions of the Heritage Council. It provides:

(1)The functions of the Heritage Council are —
…
(c)to develop, revise and publish from time to time the assessment criteria to be used in considering the cultural heritage significance of places and objects and determining whether those places or objects warrant inclusion in the Heritage Register; …

Moreover, counsel for the applicant apparently saw no impediment to the grant of relief in the nature of mandamus flowing from the failure to ask the Heritage Council to perform any identified statutory duty. The import of counsel’s submissions was that the Court enjoys an independent or discrete power to grant an order in the nature of mandamus to remove the house from the Register, irrespective of whether the Heritage Council had been requested to do so.

As the analysis of Tate and Santamaria JJA demonstrates, however, the applicant’s case was wholly bereft of merit. The power to include or remove a place from the Register under the Act is given to the Heritage Council, not to the Court. Putting to one side certain specific powers reserved to it by virtue of ss 167 and 168 of the Act, the Supreme Court’s jurisdiction is purely supervisory. That supervisory jurisdiction is only exercisable if it is established that a statutory authority — in this case the Heritage Council (or Executive Director) — has refused to exercise a duty or power in accordance with the law. The applicable law — and the only possible source of the unperformed statutory duty — reposes in the Act.

The applicant sought an order that the Heritage Council ‘forthwith remove’ the house from the Register. Only the Heritage Council, however, has power to remove the house from the Register. And as s 54(2) makes clear, before a place is removed from the Register, there are several steps which must be followed. The Heritage Council has not been asked to exercise the exclusive statutory power in s 54, and none of the compulsory steps to achieve removal have been followed. If the Heritage Council had not proceeded according to the Act, relief in the nature of mandamus might have flowed. But the Supreme Court has no independent power to remove the house from the Register. Indeed, when an application for mandamus is successful, the order of the Court will mirror the statutory duty which remains unperformed.

For the foregoing reasons, the original proceeding and the application for leave to appeal were completely misconceived.

There are two further matters which I should mention. First, if the submission of the applicant’s counsel that the source of the unperformed statutory duty is found in ss 160 to 168 could be accepted, then a further obstacle would stand in the way of an application for mandamus. The grant of mandamus is discretionary, and may be withheld if there is a more convenient and satisfactory remedy available.[80] Arguably, a convenient alternative remedy is to be found in ss 167 and 168 of the Act. Section 167 provides that the Heritage Council, the Executive Director, the Director of Public Prosecutions or any other person may bring proceedings in the Supreme Court for an order to remedy or restrain a contravention of the Act; and s 168 enables the Supreme Court to make orders to remedy or restrain the contravention.
[80]Ibid [19].

Secondly, r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 provides that a proceeding for the grant of relief or remedy in the nature of mandamus ‘shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose’; and r 56.02(3) provides that the Court shall not extend time ‘except in special circumstances’. Assuming (solely for the sake of argument) that the ground for the grant of relief in the nature of mandamus might have arisen at the latest with the letter of 2 October 2013, no adequate reason — let alone special circumstances[81] — was advanced as to why the original proceeding was not initiated until April 2015. That provides a further basis for the refusal of the relief sought.
[81]See Denysenko v Dessau [1996] 2 VR 221 (Beach J); Glasgow v Church (Unreported, 15 September 1997, VSC, Beach J); Prencipe v Niselle [1999] VSC 137 (Balmford J); Lovejoy v Myer Stores Ltd [No 2] [1999] VSC 271 (Warren J); Kay v Legal Profession Tribunal [2000] VSC 460 (Beach J); Lednar v Magistrates' Court (2000) 117 A Crim R 396 (Gillard J); Carra v Hamilton (2001) 3 VR 114 (Balmford J); Mann v Medical Practitioners Board of Victoria [2002] VSC 256 (Osborn J); Mokbel v DPP [2005] VSC 476 (Gillard J); Goodman v Victorian Civil and Administrative Tribunal [2011] VSC 35 (Habersberger J); Business Structures Pty Ltd v D'Amico [2012] VSC 283 (Davies J).

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[2017] VSCA 48

16 March 2017