Mulpha Australia Limited v Central Sydney Planning Committee - [2018] NSWLEC 179

Land and Environment Court

New South Wales

Medium Neutral Citation: Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179
Hearing dates: 1 August 2018
Date of orders: 12 November 2018
Decision date: 12 November 2018
Jurisdiction: Class 4
Before: Molesworth AJ
Decision:
See orders at [142]

Catchwords:
JUDICIAL REVIEW – integrated development – whether permissible for approval authority Heritage Council to provide comments, rather than general terms of approval, with respect to portion of development application – general terms of approval with respect to development outside curtilage of heritage item required where there is a relevant nexus – relevant nexus apparent from Heritage Council decision – misconstruction of statutory power – jurisdictional error established

WORDS AND PHRASES – “land” – definition of land in s 57(1)(e) not restricted to curtilage of item or to lot on which item sits – to be determined on a case by case basis
WORDS AND PHRASES – “in relation to” – protective purpose of the Heritage Act 1977 – interpretation promoting that purpose preferred to interpretation not promoting that purpose
Legislation Cited: Acts Interpretation Act 1901 (Cth) s 15AA
Acts Interpretation Amendment Act 2011(Cth)
Biodiversity Conservation Act 2016 s 2.1
City of Sydney Act 1988 ss 31, 40
Environmental Planning and Assessment Act 1979 ss 4.15, 4.44-4.51, 5.7
Environmental Planning and Assessment Regulation 2000 cll 66, 70
Heritage Act 1977 ss 3, 4, 32, 56, 57, 63, 63B
Interpretation Act 1987 ss 21, 33
Interpretation of Legislation Act 1984 (Vic) s 35
Standard Instrument – Principal Local Environmental Plan 2012 cl 5.10
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 1.16
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
Sydney Local Environmental Plan 2012 cl 5.10, Sch 5
Cases Cited: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Commissioner of Police (NSW) v Kennedy [2007] NSWCA 328
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20
Mine Subsidence Board v Wambo Coal (2007) 154 LGERA 60
North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247
Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184
People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46
Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Scully v Leichhardt Council (1994) 85 LGERA 109
Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189
Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33
Texts Cited: Herzfeld, Prince and Tully, Interpretation and Use of Legal Sources – The Laws of Australia (2013, Thomson Reuters)
Macquarie Dictionary (revised 3rd ed, 2001, Macquarie University press)
Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis)
Shorter Oxford Dictionary on Historical Principles (3rd ed 1980, Clarendon Press)
Category: Principal judgment
Parties: Mulpha Australia Limited (Applicant)
Central Sydney Planning Committee (First Respondent)
Heritage Council of New South Wales (Second Respondent)
Stamford Property Services Pty Ltd (Third Respondent)
Representation:
COUNSEL:
N Hutley SC and C Ireland (Applicant)
B Dyer (Solicitor) (First Respondent)
S Duggan SC and J McKelvey (Second Respondent)
B Walker SC and M Astill (Third Respondent)
SOLICITORS:
Addisons Lawyers (Applicant)
City of Sydney (First Respondent)
Department of Planning and Environment (Second Respondent)
Norton Rose Fulbright (Third Respondent)

File Number(s): 2018/144179

Table of Contents

THE HERITAGE LISTING OF THE FORMER HEALTH DEPARTMENT BUILDING
2013 DA AND CLASS 1 PROCEEDINGS
THE CURRENT PROPOSAL
THE HERITAGE COUNCIL PROVIDED GENERAL TERMS OF APPROVAL FOR PART OF THE PROPOSAL
THE ORDERS SOUGHT
THE INTERLOCUTORY INJUNCTION
RELEVANT LEGISLATIVE PROVISIONS
RELEVANT EVIDENCE
THE PARTIES’ POSITIONS
Applicant’s submissions
Relief sought

Respondents’ submissions
Stamford’s submissions
Heritage Council’s submissions

Applicant’s submissions in reply
“Development in relation to land”
“In relation to”
“Development”

Response to Heritage Council's submissions

CONSIDERATION
“Land”
“In relation to”
A relevant nexus
Relevance of the listing
Further contentions raised by Stamford

COSTS
ORDERS

Judgment

The precinct containing the site in issue in these proceedings is at the northern end of Macquarie Street in Sydney, graced by large and mature street trees, leading to the World Heritage listed Opera House downhill to the north. Although the presence of the aerial Cahill Expressway intrudes in a somewhat omnipresent fashion by bridging Macquarie Street, the grand boulevard status of the northern end of Macquarie Street is reinforced on its eastern boundary by a broad grassed and treed verge which is clearly designed to obscure the inset M1 motorway to the east. Further to the south-east, the heritage registered Conservatorium book-ends the commencement of the heritage listed Sydney Royal Botanic Gardens which extend to the south and east. To the immediate north of the site across narrow Albert Street is the similarly heritage listed Royal Automobile Club of Australia. To the west, directly abutting the site is the heritage listed Justice and Police Museum situated on the corner of Phillip and Albert Streets; whilst to the south, fronting Macquarie Street on the corner of Bridge Street is the sandstone grandeur of the heritage listed former Treasury Building (now housing the Hotel Intercontinental and the Southern Cross University). Set back behind the Hotel Intercontinental is its related modern tower, abutting Phillip Street. Also fronting Macquarie Street, sitting between the Hotel Intercontinental and the Sir Stamford Hotel, at No 99 is an art deco sandstone building, with the name of the Applicant, Mulpha Australia Limited, on a brass plaque.
It is within this setting that the observer will find nestled into the north-east corner, abutting Macquarie Street and Albert Street, the building known as the former Health Department Building (Building), which is (including a specified curtilage) listed on the State Heritage Register pursuant to the Heritage Act 1977. In the context of a proposal to redevelop the Sir Stamford Hotel, fronting both Macquarie Street and Bridge Street, it is this Building which is at the centre of the contentions in these proceedings.
The Building is owned by the Third Respondent, Stamford Property Services Pty Ltd (Stamford) at 93-97 Macquarie Street, Sydney (Lot 12 in Deposited Plan 1197140) (the Site). That Site, which includes a cluster of associated buildings, is primarily known as the location of the Sir Stamford Hotel.
By Summons dated 8 May 2018, the Applicant, the owner of the property neighbouring the Site, commenced Class 4 proceedings in relation to an integrated development application D/2017/1609 (Stamford DA) lodged by Stamford for the development of the Site, being a concept development application for:

“Conservation of the existing heritage item (Health Department Building), building envelope and use for the purposes of ground floor and lower ground floor retail and residential apartments up to a height of 55m.”

THE HERITAGE LISTING OF THE FORMER HEALTH DEPARTMENT BUILDING

On 23 July 2012 an interim heritage order for the Building was gazetted (the IHO).
On 1 May 2013 the Second Respondent, the Heritage Council of New South Wales (Heritage Council) prepared a Notification of Intention to List Report (Report), which considered whether the Building ought to be listed on the State Heritage Register. The Report stated, inter alia, “the recommended curtilage for the listing will enclose the state significant components of the item, as illustrated in the curtilage plan… The curtilage has been limited to the material edges of the building as does not include additional landscape or buffer areas due to the existing development of the site.”
On 3 July 2013, the Office of Environment and Heritage and the Heritage Council recommended that the Building be included on the State Heritage Register. On 15 September 2013, the Minister for Heritage agreed to this joint recommendation and signed a gazettal notice which described the listing as applying to “part of Lot 1 DP 839564… shown on the plan catalogued HC 2583…”.
On 9 October 2013 a direction was given, pursuant to s 32(1) of the Heritage Act, to list an item of environmental heritage significance on the State Heritage Register. The item was described as:

“The item known as the Health Department Building (former), situated on the land described in Schedule ‘B’”.

Schedule “B” read:

“All those pieces or parcels of land known as part of Lot 1, DP 839564 in Parish of St James, County of Cumberland shown on the plan catalogued HC 2583 in the Office of the Heritage Council of New South Wales.”

The plan catalogued HC 2583 is annexed to this judgment at Annexure A. It is to be noted that on this plan the curtilage of the heritage listing of the Building is shown by diagonal hatching. The legend on the plan uses the word “curtilage” to clarify the meaning of the diagonal hatching. Further, as Schedule B quoted at [9] above confirms, the designated curtilage is just a part of the Torrens title lot, being Lot 1, DP 839564, verified by the use of the words “as part of”. Although this plan, which appeared in the Government Gazette, has a scale on it, the plan does not set out survey particulars. However, the Court has proceeded on the basis that in order to precisely identify the curtilage for the purposes of a gazettal in the Government Gazette, a formal survey to confirm the curtilage most probably occurred. In this judgment, where convenient, the curtilage of the Building, as shown by the diagonal hatching on the plan, has been referred to as the “footprint” of the Building.

2013 DA AND CLASS 1 PROCEEDINGS

On 20 December 2013, Stamford made an integrated development application (designated D/2013/2011) (2013 DA) to the City of Sydney Council in relation to the Site, for the:

“retention and adaptive reuse of the former Health Department building for retail and commercial uses and for conservation works, and the partial demolition and adaptive reuse of part of the existing Sir Stamford Hotel and construction of a 19 storey (plus plant level) tower for residential and commercial uses.”

On 6 March 2014, the Heritage Council resolved to grant general terms of approval (GTAs) for the 2013 DA pursuant to s 63 of the Heritage Act. However on 5 June 2013, the City of Sydney Council requested that the Heritage Council consider the 2013 DA afresh, with the benefit of all submissions made in respect of the 2013 DA.
In a report dated 14 August 2014, for a Heritage Council Approvals Committee meeting scheduled on 20 August 2014, officers of the Heritage Council recommended that the 2013 DA be refused.
On 15 August 2014, Stamford commenced Class 1 proceedings in this Court in relation to the 2013 DA. On 28 May 2015, in Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189, those proceedings were dismissed.

THE CURRENT PROPOSAL

On 20 November 2017, Stamford again lodged a development application (being the Stamford DA, described above at [4]) with the City of Sydney Council in relation to the Site. This development application is the subject of these proceedings. The Heritage Council was notified, in accordance with cl 66 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), of the Stamford DA on 20 November 2017.
The development proposed by the Stamford DA was described in that document as:

“(1) The development application is for the demolition of the existing Stamford Hotel building, the construction of a new 16 storey residential apartment building on the Land and for the adaptive reuse by way of a change to residential use and alterations and additions to the former Health Department Building also on the Land.”

That is, the development the subject of the Stamford DA comprises a tower component, the “new 16 storey residential apartment building”, which is to be located outside of the footprint of the Building (and outside the curtilage of the Building as set out in the listing) on the Site, and the conservation and adaptive reuse of the Building.
The development proposed by the Stamford DA has an estimated cost exceeding $50 million and is therefore a major project for the purposes of the City of Sydney Act 1988 (at s 31). The First Respondent, the Central Sydney Planning Committee, is the consent authority for the Stamford DA, with the City of Sydney Council able to exercise the functions of the First Respondent as delegated to it by the First Respondent from time to time by virtue of s 40 of the City of Sydney Act.

THE HERITAGE COUNCIL PROVIDED GENERAL TERMS OF APPROVAL FOR PART OF THE PROPOSAL

On 7 March 2018, the Heritage Council’s Approvals Committee met and resolved to issue GTAs in respect of the conservation of the Building only (that is, as distinct from the entirety of the Site). The minutes of the meeting note that it was discussed that the:

“Heritage Council’s approval role is limited to the Health Department building that is listed on the SHR [State Heritage Register] and that [the Heritage Council]’s role on the proposed tower development on the adjoining site is to provide only a comment on the proposed tower development on the adjoining site.”

Resolution 2018-30 of that meeting set out that:

“After discussion, the Heritage Council Approvals Committee:
1. AGREES to issue approval for the conservation of the Health Department Building (former) subject to the following terms of approval:
a. Detailed schedule of conservation works along with an implementation plan shall be submitted with a future application to carry out these works;
b. This conservation works schedule must be prepared in consultation with an appropriately qualified and experienced heritage consultant;
c. All conservation works must be implemented as part of the adaptive reuse works prior to an occupation certificate being issued for the Health Department Building (former).
d. The use of the Health Department Building (former) for a residential flat building is not approved as no details have been provided for internal and external changes required to achieve this use. The use is to be considered as part of the Stage 2 development application along with such details.

2. PROVIDES the following comments on the proposed development located outside the State Heritage Register (SHR) curtilage of the Health Department Building (former):
The proposed tower is not supported for the following reasons:
a. The proposed tower block with a 10m setback from Macquarie Street frontage would have a detrimental impact on the setting of several SHR listed heritage items and the Macquarie Street Special Character Area. The subject site located within a group of State Heritage Register listed (SHR) items including the Justice and Police Museum (SHR No 00726) and the Intercontinental Hotel former Treasury Building (SHR No 00355) forms an important component of the Macquarie Street and Bridge Street precinct.
b. The State heritage significance of the Former Health Department Building is inextricably linked to its ability to reflect the status of Macquarie and Bridge Streets as a prestige address for many government institutions, becoming an important component of the precinct.

3. RECOMMENDS that the Sydney Development Control Plan 2012 planning controls be revised to support only low-scale development between 89-121 Macquarie Street to protect the heritage values of this low-scale precinct. The current street wall height and existing low-scale setting of the precinct should be maintained as the dominant height for the full 30m depth of all sites fronting Macquarie Street from the Chief Secretary’s Building (SHR No 00766) through to the Royal Automobile Club (SHR No 00700).”

The Applicant contended that the Heritage Council, in so providing GTAs for the portion of the Stamford DA dealing with the Building only, and not for the whole of the Stamford DA, misconstrued its role, and in so doing, fell into jurisdictional error, and that it ought to have either provided GTAs, or notification that it would refuse a Heritage Act approval, in relation to the whole of the Stamford DA.

THE ORDERS SOUGHT

The Applicant sought orders:

prohibiting the First Respondent from determining the Stamford DA “pending the provision of a lawful decision” by the Heritage Council under s 4.47 (formerly s 91A) of the Environmental Planning and Assessment Act 1979 (EPA Act) and cl 70 of the EPA Regulation “concerning the general terms of approval in relation to the Stamford DA (including whether or not it will grant an approval under s 63 of the Heritage Act)"; and

requiring the Heritage Council to provide to the City of Sydney Council (as the delegate of the First Respondent) such a decision.

THE INTERLOCUTORY INJUNCTION

By Notice of Motion filed on 8 May 2018, the Applicant sought an interlocutory injunction restraining the First Respondent from determining the Stamford DA until further order of the Court.
At the hearing, on 1 August 2018, the Respondents indicated that they did not object to this injunction being granted, and the Applicant gave the usual undertaking as to damages. Accordingly, the Court made the order sought, that:

“The First Respondent is restrained from determining the integrated development application lodged by the Third Respondent on or about 20 November 2017 for the redevelopment of the property at 93-97 Macquarie Street, Sydney (being legally described as Lot 12 in Deposited Plan 1197140), until further order of the Court.”

The Court noted that the Applicant gave the usual undertaking as to damages.

RELEVANT LEGISLATIVE PROVISIONS

The Heritage Act has a number of objects, set out in s 3, being:

(a)   to promote an understanding of the State’s heritage,
(b)   to encourage the conservation of the State’s heritage,
(c)   to provide for the identification and registration of items of State heritage significance,
(d)   to provide for the interim protection of items of State heritage significance,
(e)   to encourage the adaptive reuse of items of State heritage significance,
(f)   to constitute the Heritage Council of New South Wales and confer on it functions relating to the State’s heritage,
(g)   to assist owners with the conservation of items of State heritage significance.

Section 57 of the Heritage Act, which deals with the effect of the listing of an item on the State Heritage Register, states:

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,
(c)   move, damage or destroy the relic or moveable object,
(d)   excavate any land for the purpose of exposing or moving the relic,
(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.

(1A)   In the case of an interim heritage order made by a council, subsection (1) does not apply to:
(a)   State significant development within the meaning of the Environmental Planning and Assessment Act 1979, or
(b)   development, or demolition of a building or work, carried out by or on behalf of the Crown (with Crown including the persons prescribed for the purposes of Division 4 of Part 4 of the Environmental Planning and Assessment Act 1979 as referred to in section 88 (2) (a) of that Act).

(1B)   Subsection (1) does not apply to anything that is exempted from the operation of this Part by a heritage agreement.
(1C)   Subsection (1) (d) does not apply in the case of a relic to which an interim heritage order made by a council applies.
(1D)   Subsection (1) does not apply to anything that is exempted from the operation of this Part by a conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council.
(2) The Minister, on the recommendation of the Heritage Council, may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. The Minister’s power under this subsection extends to apply in respect of interim heritage orders made by councils.
(3)   A council may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. Such an exemption has effect only in respect of an interim heritage order made by the council concerned.

The carrying out of the proposal put forward in the Stamford DA therefore requires approval under s 57 of the Heritage Act. However, the parameters of the approval required under that section is at issue in these proceedings.
The determination of applications for approvals required by s 57 is provided for at s 63 of the Heritage Act:

63   Determination of application
(1)   Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval.
(1A) The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979.
(2)   Where:
(a)   an application for approval is made to demolish the whole of a building or work, or
(b)   an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work,

the approval body shall determine that application by refusing approval.
(3)   Nothing in subsection (2) prevents the approval body from approving an application referred to in that subsection if:
(a)   it is of the opinion that the building or work constitutes a danger to the users or occupiers of that building or work, the public or a section of the public, or
(b)   it is a condition of the approval that the building or work be relocated on other land, or
(c)   the building or work is situated (whether wholly or partly) in a place or precinct that is an item of State heritage significance, but is not itself such an item, and the approval body is of the opinion that the demolition of the whole of the building or work will not have a materially detrimental effect on the heritage significance of the place or precinct.

(4)   Without limiting or restricting the power of the approval body to impose conditions under subsection (1), it may, in granting approval to an application for approval, impose, as a condition of its approval, a condition:
(a)   that the applicant give security in such form and such amount as is determined by the approval body having regard to the nature and extent of the work referred to in the approval to ensure the satisfactory completion of that work, and
(b)   that where the approval is to the demolition, in whole or in part, of a building or work, such measures as are specified in the approval be taken in the interests of public safety and convenience with respect to the demolition.

The proposal is an integrated development pursuant to s 4.46 of the EPA Act (formerly s 91). Section 4.47 (formerly s 91A), which requires consent authorities to obtain GTAs from each relevant approval body in relation to the development, provides that (relevantly):

4.47   Development that is integrated development
(cf previous s 91A)
(1)   This section applies to the determination of a development application for development that is integrated development.
(2)   Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.
(3)   A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.
(4)   If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.
…

Section 4.48 (formerly s 92) of the EPA Act provides that a consent authority cannot refuse a development consent on heritage grounds if the development is the subject of an approval granted in respect of the doing or carrying out of an act, matter or thing referred to in s 57(1) of the Heritage Act:

4.48   Consent authority may not refuse certain development applications
(cf previous s 92)
(1)   This section applies to the determination by a consent authority of a development application for development that is integrated development for which a heritage approval is required.
(2)   A consent authority must not refuse development consent on heritage grounds if the same development is the subject of a heritage approval.

Division 3 of Pt 6 of the EPA Regulation provides for the seeking of GTAs by the consent authority, and specifically cll 66 and 70 state:

66   Seeking general terms of approval
(cf clause 52A of EP&A Regulation 1994)
(1)   After it receives a development application for integrated development, the consent authority:
(a)   must forward a copy of the application (together with all accompanying documentation) to the approval body whose approval is required, and
(b)   must notify the approval body in writing of the basis on which its approval is required and of the date of receipt of the development application, and
(c)   if known at that time, must notify the approval body in writing of the dates of the relevant submission period if the application is to be publicly notified under Schedule 1 of the Act.

(2)   In the case of a development application that indicates on its face that such an approval is required, the application must be forwarded to the relevant approval body within 14 days after the application is lodged.
70   Notification of general terms of approval
(cf clause 53B of EP&A Regulation 1994)
(1)   An approval body that has received a development application from a consent authority must give written notice to the consent authority of its decision concerning the general terms of approval in relation to the development application (including whether or not it will grant an approval):
(a)   within 40 days after receipt of the copy of the application, or
(b)   in the case of development that is required to be advertised or notified under Schedule 1 of the Act, within 21 days after it receives:
(i)   the last of the submissions made during the relevant submission period, or
(ii)   advice from the consent authority that no submissions were made.

Note. This period may be extended by operation of Division 11.

(2)   If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1):
(a)   the consent authority must notify the approval body as soon as possible after the determination, and
(b)   this clause ceases to apply to the development application.

(3) Nothing in this clause prevents a consent authority from having regard to an approval body’s general terms of approval that have been notified to the consent authority after the expiration of the relevant period under subclause (1).

Section 56 of the Heritage Act provides that the Heritage Council is an “approval body” in respect of an interim heritage order made by the Minister or listing on the State Heritage Register.

RELEVANT EVIDENCE

In support of the Summons, the Applicant relied on the affidavits of David O'Donnell sworn 8 May 2018 and Stephanie Vatala sworn 15 June 2018, both of which were read into evidence, without objection. These affidavits together with various exhibits to those affidavits were contained in an extensive two volume evidence book comprising in excess of 600 pages of documents.
Documents under tabs 14, 15 and 16 in volume 2 of the evidence book which related to reports to the Heritage Council’s Heritage Approvals Committee in relation to a previous development application in 2014, were initially objected to by the Heritage Council. However, at the commencement of the hearing, senior counsel for the Heritage Council withdrew the objection [Tcpt p 2]. Consequently, all the exhibits to the affidavits were admitted into evidence without objection.

THE PARTIES’ POSITIONS

Applicant’s submissions

The Applicant argued that, in providing GTAs only in respect of the portion of the Stamford DA dealing with the Building itself, and not in respect of the whole of the Stamford DA, the Heritage Council misconceived its role and did not perform the duty imposed on it by legislation.
It posited that “[t]he central issue in the proceedings is straightforward – it is whether it was lawful for the Second Respondent to provide GTA's in relation to part only of the Stamford DA which was referred to it, and to merely provide ‘comments’ only in respect of the rest of the Stamford DA”. It argued that the statutory context did not support such a course of action by the Heritage Council.
As noted above, s 57(1)(e) of the Heritage Act provides that where a listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, approval by the Heritage Council is required for the carrying out of 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.
The Applicant argued that the Stamford DA provided for the carrying out of development in relation to the land on which the Building is situated, and thus required the approval of the Heritage Council, in three ways.
First, the Stamford DA proposed physical works to and adaptive reuse of the Building itself. This work is part of the Stamford DA, the Applicant argued, and therefore the Stamford DA as a whole relates to land on which the Building is situated. The Applicant argued that there was no justification for artificially splitting the development proposed by the Stamford DA so as to treat the tower component separately from the remainder of the proposal.
Secondly, the Applicant argued, the tower component of the development is in any event development “in relation to” the land within the curtilage of the Building. The phrase “in relation to” when used in legislation, the Applicant argued, relying on Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33 at 519, has a broad meaning and takes its meaning from the subject matter of the provision, the legislative history and the facts of the particular case. The Applicant posited that in this instance, the statutory context includes the protective purpose of the Heritage Act, reflected in s 57, and that heritage protection encompasses “not only physical impacts but also intangible matters such as the relationship of an item or building to others or a precinct in terms of heritage significance and value”. This, the Applicant contended, suggested that it would be incorrect to regard development outside a heritage curtilage as development that could not be “in relation to” the land within that curtilage.
The Applicant cited the “Heritage Council’s Report for Decision”, relied upon by the Heritage Council Approvals Committee in making the impugned decision of 7 March 2018, as a demonstration of the notion that a development outside the curtilage of a heritage listed item could have adverse impacts on the heritage significance of that item, when it said that:

“[T]he integrated development application (IDA), if approved, would materially affect the significance of the Health Department Building (former) as an item of the environmental heritage; because the proposed erection of the tower would permanently damage the Item's ability to reflect the status of Macquarie and Bridge Streets as a prestige address for many government institutions and would have major adverse impacts on the setting of the precinct that defines the SHR values of the item.”

The Applicant argued that if a development has an impact on the heritage significance of the listed item (in this instance, the Building and its curtilage – the “land” on which it is situated, if “land” is used in the narrow sense as limited to that curtilage, as set out below at [75] and following), it follows that such a development is development “in relation to” the item (and the land upon which it is situated, as per s 57(1)(e), “land” being used in the narrow sense). Any other construction of s 57(1)(e), according to the Applicant, “would emasculate the protective effect of the section and reduce it to a residual requirement for approval where there was physical damage to the building or its curtilage, which is just not what the section says at all”.
Attached as Annexure B is a scale diagram showing the location of the listed Building in the context of the other components of the proposed development in the Stamford DA, being an extract from the “Proposed Building Envelope Massing Diagrams”, KannFinch, dated 17 October 2017.
Further, the Applicant contended that on a proper construction of s 57(1)(e) the word “land” ought to be read broadly, that is, it ought to be read as referring to the lot on which the heritage listed item is situated, rather than simply the footprint of the item itself. Such a construction, it argued, accords with the purposive approach required by s 33 of the Interpretation Act, that in interpreting a provision of an Act, a construction that would promote the purpose or object underlying that Act is to be preferred to a construction that would not promote that purpose or object. A narrower construction, for instance that “land” refers only to the physical footprint of an item, would not promote the purpose of the Heritage Act, the Applicant said, as it would allow, for example, “development abutting a listed building on the same lot without any separation, without any s 57 approval being required”, or a building overhanging a heritage item.
In response to Stamford’s contention that the listing of the Building only extends to the part of the lot being the curtilage set out in the Government Gazette notice, the Applicant argued that this did not assist with the construction of “land” for the purposes of s 57(1)(e), because the delegated legislation cannot be used to construe an Act of Parliament.
The Applicant noted s 63B of the Heritage Act, which allows for partial and conditional approvals to be granted, however argued that the section was irrelevant in this matter because “the obligation of the Second Respondent was to provide GTA's for the whole of the Stamford DA, and not just a bit of it (as occurred)”. That is, the Heritage Council’s obligation was to either grant approval to the application (either unconditionally or subject to conditions), or refuse to grant an approval.
The Applicant pointed to cl 70 of the EPA Regulation as confirmation of its construction of the duties of the Heritage Council in this instance. The chapeau to cl 70(1) states that:

70 Notification of general terms of approval
(1) An approval body that has received a development application from a consent authority must give written notice to the consent authority of its decision concerning the general terms of approval in relation to the development application (including whether or not it will grant an approval)

This, the Applicant argued, required a statement by the Heritage Council as to whether or not it would grant approval. The approach that the Heritage Council took in this matter, to provide comments in relation to the tower component, a statement that approval would be granted for the conservation works, and a statement that no approval would be granted for the adaptive reuse as residential units, was not, the Applicant submitted, what was required by cl 70. This was the case whether cl 70 was read alone or with (the former) s 91A (now s 4.47) of the EPA Act.
The Applicant contended that if it were permissible for an approval body to provide “comments”, as the Heritage Council did in this instance, the operation of (the former) Div 5 of Pt 4 of the EPA Act (now Div 4.8 of Pt 4) would be undermined because it would allow negative comments to be provided by an approval authority, but they would not have the operative effect pursuant to (the former) s 91A(4) of requiring consent to be refused by the consent authority, they could only be regarded as a failure to provide GTAs.
The Applicant argued that, even if the Heritage Council considered that the tower component did not require approval under s 57 of the Heritage Act, it was required, in relation to the Stamford DA, to issue GTAs either as a statement of approval (as to the whole or part of the Stamford DA), or refusal (as to the whole or part of the Stamford DA). Further, the Applicant submitted, the reasoning of the Heritage Council and the material before it plainly showed that the decision as to the GTAs “was required to be a statement that approval would only be granted in relation to the conservation works, and not to the Stamford DA as a whole”. In providing “comments” on the tower component, the Applicant argued, the Heritage Council gave effect to neither its own assessment, nor to its obligations under s 91A of the EPA Act and cl 70 of the EPA Regulation.

Relief sought

The Applicant submitted that an order in the nature of a writ of prohibition ought to be granted prohibiting the First Respondent from making a decision with respect to the Stamford DA. Such an order was necessary, it argued, as a proper exercise of the functions of the Heritage Council under s 91A of the EPA Act and cl 70 of the EPA Regulation would have required the First Respondent to refuse consent to the Stamford DA pursuant to s 91A(4), but that currently, and in the absence of a prohibitory order, the First Respondent is not so constrained.
It followed, the Applicant argued, that an order in the nature of mandamus should also be granted due to the Heritage Council’s failure (according to the Applicant) to exercise its function under cl 70 of the EPA Regulation in accordance with law.

Respondents’ submissions

Stamford’s submissions

The proponent of the development, Stamford, took the lead in defending the decision of the Heritage Council. It argued that the decision was predicated on a correct interpretation of s 57(1)(e) of the Heritage Act. That is, that the subsection operates to require Heritage Council approval of the proposed development only within the area comprising the Building’s curtilage, rather than to the whole of the proposed development or the proposed development as it relates to the lot on which the Building is situated.
Stamford argued that statutes that are concerned with regulation of the use and development of land generally do so having regard to the functional extent of the use and occupation of the land, as opposed to cadastral boundaries (citing People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 (People for the Plains) at [165]-[166] and [187] per Ward JA, and [206]-[207] per Payne JA; and Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184 (Pathold)), and that the Heritage Act does not disclose an intention to depart from this principle. In passing, the Court observes that its analysis of these cases did not arrive at the same general conclusion pressed by Stamford. There was little in Pathold to support Stamford’s proposition and with respect to People for the Plains, in the particular circumstances of that case the factual extent of use and occupation was the necessary conclusion in the context of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 therein being considered.
Stamford pointed to s 32(3)(a) of the Heritage Act which provides that a listing in respect of a building may include the curtilage of that building as specified or described in the listing itself. This, it said, was indicative that the “clear intention” of the Heritage Act was that the listing of a building would only include land beyond that physically occupied by the building where such land was identified in the listing and included as curtilage. It argued that in the circumstances of this matter, the Heritage Council, in listing the Building, clearly considered the extent to which the listing was intended to operate, and intended that the listing only be operative with respect to the curtilage defined in the listing itself. This was because the heritage branch at the Office of Environment and Heritage had, on 10 April 2012, recommended an interim heritage order with respect to the whole of Lot 1 DP 839564, and the Minister for Heritage had agreed to the recommendation and signed the proposed gazettal notice on 22 April 2012. However, on 4 June 2012, a brief to the Minister made a replacement recommendation that the listing should be made only with respect to the Building itself, not the whole Lot, as “this is where the Heritage values most at risk are located”. These recommendations were accepted by the Minister on 8 July 2012.
If s 57 were to be construed in the manner proposed by the Applicant, Stamford argued, any curtilage included in a listing would be unnecessary because the listing would be read to extend to the boundaries of the lot. The result of this construction, Stamford argued, would be to render the curtilage provided for in s 32(3)(a) meaningless. On this construction, Stamford posited, s 32(3)(a) would be redundant, and therefore contrary to the approach set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [71]:

“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’” (citations omitted)

Stamford further contended that the Applicant’s construction was inconsistent with, in particular, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). It pointed to cl 1.16 of the Codes SEPP, which provides requirements for prescribed development to be exempt from the requirement to obtain approval under the EPA Act, and in particular cll 1.16(1)(c) and 1.16(1B), which state:

1.16   General requirements for exempt development
(1)   To be exempt development for the purposes of this Policy, the development:
…
(c)   must not be carried out on land that is, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977, or that is subject to an interim heritage order under that Act, and
…
(1B)   If an item listed on the State Heritage Register is not located on, or does not comprise, the whole of the relevant land, subclause (1) (c) applies only to the part of the land that is described and mapped on that register.

Stamford argued that cl 1.16(1B) made it clear that the legislature intended that, where a heritage item sits on part of a parcel of land, development in respect of that part requires approval under the Heritage Act and is not exempt development, but elsewhere on the parcel development will not require Heritage Act approval and may be exempt development.
The Applicant’s construction, Stamford said, would mean that such development, elsewhere on the same parcel of land as a heritage item, would be exempt from requiring approval under the EPA Act (pursuant to the Codes SEPP) but would still need approval under the Heritage Act.
Stamford further argued that the Applicant’s construction would have impractical and unintended results where one or more listed buildings occurred on a very large parcel of land, such as a university with only certain buildings of heritage significance. Such a construction, Stamford posited, “would require Heritage Act approval for any development on that parcel irrespective of its proximity to the buildings with heritage values, and irrespective of any specifically defined curtilage in the listing.”
In response to the Applicant’s contention, summarised above at [39], that the approach taken by the Heritage Council was to artificially split the development, for which there was no justification, Stamford argued that this misunderstood the effect of the integrated development provisions of the EPA Act (that is, ss 4.44-4.51). Those provisions, Stamford contended, set out a range of approvals under other pieces of legislation, which are “constrained to be determined under and in accordance with their respective enabling legislation”, and the cognate GTAs to be provided by the approval bodies are similarly constrained.
That is, Stamford said “[t]he fact that general terms of approval are sought in the context of a broader development proposal does not give the approval body carte blanche to impose conditions beyond their own enabling legislation in providing general terms of approval”.
Stamford argued that the Applicant’s interpretation meant that the scope of the Heritage Council's powers would depend on strategic decisions made by a proponent as to how they want to prepare a proposal. This would, it said, give the Heritage Council the power to refuse part of a development which, had it been put in a separate development application to redevelopment of the heritage item, would not require any approval under the Heritage Act.
As to the Applicant’s argument, at [41]-[43] above that the development that is to be carried out beyond the Building’s curtilage is “in relation to” the land within the Building’s curtilage, and characterised by Stamford as a “construction that the land in s 57 means land, the development of which, may affect the heritage significance of the item”, Stamford’s rebuttal rested on four grounds.
First, it argued that such a construction is incongruent with the structure of the Heritage Act, because it is during the listing process that a curtilage may be identified so that any development in respect of that area will require approval, and during the determination as to whether or not approval should be granted that impacts are to be assessed.
Secondly, it argued that such an interpretation has an uncertain effect, as the land over which approval would be required would depend on a subjective interpretation of “impact”, in respect of which reasonable minds may differ. It argued that given the Heritage Act creates criminal offences for breaches of relevant provisions, a construction open to subjectivity and uncertainty ought not to be accepted. Impact should not be the standard for whether approval is required, it argued, rather the listing itself should determine this.
Thirdly, it argued that although, on its interpretation, there was no requirement for the Heritage Council approval outside the area set out in a listing, it does not follow that any impact of the development on the listed item would not be assessed because such impact is within the matters mandated for consideration by the consent authority in s 4.15(1)(b) of the EPA Act (formerly s 79C(1)(b)).
Finally, Stamford contended that, even though the phrase “in relation to” has a broad meaning, in this scheme the phrase operates with respect to the connection between the proposed development and the listed item, not with respect to the land that might be included. It posited that this was confirmed by the definition of “development” in s 4 of the Heritage Act which states that:

4 Definitions
(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
…
development, in relation to land, means:
(a)   the erection of a building on that land,
(b)   the carrying out of a work in, on, over or under that land,
(c)   the use of that land or of a building or work on that land, and
(d)   the subdivision of that land

Stamford argued that because the definition itself incorporates the phrase “in relation to”, that phrase could not then be relied upon “to expand what might be meant by land as all paragraphs of the definition refer to the various acts being done on that land not some broader area that might be affected by the development”.
With respect to the Applicant’s contention that giving “land” a broader meaning gave better effect to the objects of the Heritage Act, Stamford submitted that such an argument was not supported by “law or logic”. In fact, Stamford argued, there was ample scope during the listing process for a building for identifying land which should be included as the curtilage of that building. The Applicant’s argument, Stamford said, was that the identification of curtilage was to no effect, because the whole of the lot would be effectively included. This, Stamford posited, was “directly and obviously contrary to the clear intent of the Heritage Act”, and ignored that, if a building's own heritage significance was inextricably linked to its ability to reflect the heritage status of a precinct, the Heritage Act also provides for the listing of a precinct or place.

Heritage Council’s submissions

The Heritage Council adopted Stamford’s submissions in their totality. In support of Stamford’s submission described at [68] above, the Heritage Council noted the terms of cl 5.10 and Sch 5 of the Sydney Local Environmental Plan 2012 as it applies to the proposal, and, more generally, the terms of cl 5.10 of the Standard Instrument – Principal Local Environmental Plan 2012.
In the alternative, the Heritage Council submitted that, in the event the Court was to determine that the Heritage Council was required to submit GTAs for the part of the proposal outside the curtilage of the Building, the current GTAs, properly constructed, may be taken as a refusal of that part of the proposal. The Heritage Council argued that, contrary to the Applicant’s contention that in order for the GTAs to be considered a partial refusal under s 63B of the Heritage Act there must be an express statement to that effect, there was no such requirement under the Heritage Act. In any event, the Heritage Council argued, the GTAs made clear that:

the conservation of the Building was “approved” subject to conditions;

the use of the Building for a residential flat building is “not approved”;

the proposed tower development is “not supported”.

The Heritage Council argued that as the use of the Building for the purposes of a residential flat building is not approved, and the tower development is for that purpose, the GTAs make it clear that the use of the tower development for a residential flat building is not approved. It further argued that the reasons for its lack of support for the tower building “[do] not diminish the effectiveness of the refusal of that part of the development, should a determination of that part of the development have been required”.

Applicant’s submissions in reply

In response to Stamford’s contention that there is no implication in the Heritage Act that “land” is used in a cadastral sense, the Applicant pointed to the Interpretation Act, which at s 21 defines land as:

“land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein”.

That is, the Applicant said, “aspects or incidents of the term in its real property or cadastral sense, rather than in a physical or topographic sense”.

The Applicant submitted that in the present circumstances, there was no contrary intention in the statutory context requiring this definition to be displaced (in contradistinction to the circumstances in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20), and that it therefore applied to the use of the term in the Heritage Act by virtue of s 5(2) of the Interpretation Act. In fact, the Applicant posited, “construing ‘land’ as meaning the ‘lot’ or ‘parcel’ cannot diminish and can only promote the protective object of the Heritage Act”.
As to Stamford’s contention, discussed above at [69]-[70], regarding the phrase “in relation to” and its inclusion in the definition of “development” in the Heritage Act, the Applicant submitted that even if the significance attached by Stamford to this inclusion was correct, that would be further reason to construe “land” as lot or parcel rather than the more narrow construction favoured by Stamford.
The Applicant argued that there was nothing in People for the Plains (relied on by Stamford, as summarised above at [55]) that “cuts across this established law”. The Applicant posited that in that matter, there was no question as to whether “land” was to be construed in either a cadastral or a topographical sense, and that indeed, there could not have been such a question as the matter dealt with a state environmental planning policy, being an instrument under the EPA Act, and therefore the definition of “land” established in North Sydney Council v Ligon 302 Pty Ltd applied. It noted that it did not consider Pathold (also relied upon by Stamford) relevant to the present issue.
The Applicant argued that its construction, that “land” in s 57(1)(e) of the Heritage Act is used in its cadastral sense as a reference to the lot on which the relevant building is situated, provides certainty as to the development that requires approval, if “development in relation to land” is understood as development on, in, or under that land.
If, on the other hand, the term “in relation to the land” is construed as including other relationships with the land (for example, impacting, affecting, or adjoining the land), the Applicant contended that taking “land” to mean in its cadastral sense as a lot or a parcel would mean that s 57(1)(e) would operate to protect a larger area of land. Such an interpretation, the Applicant said, providing a “broader blanket of protection”, is consistent with the object of the Heritage Act set out at s 3(b) of encouraging conservation of the State’s heritage.
The Applicant submitted that Stamford’s construction of the phrase “in relation to the land on which the building is situated” in s 57(1)(e) is not open on the language of the subsection. The subsection, the Applicant noted, does not refer to “curtilage”, nor does it refer to the listing of the building.
The Court’s task, the Applicant submitted, was to construe the language actually used in the relevant provision. If Parliament had intended to require approval where there was development of a listed building’s curtilage, the Applicant submitted, the section would have been worded differently.
Stamford’s interpretation, summarised at [56] above, as to the intent of the Heritage Council in listing the Building and the effect of that listing, the Applicant submitted, went too far, to the extent that it would have the effect of the administrative action of the listing of the Building impermissibly controlling the meaning of s 57(1)(e) of the Heritage Act. Contrary to Stamford’s statement that “[the Heritage Council] clearly intended the Listing to be operative only with respect to the curtilage as defined in the Listing itself”, the Applicant posited that the listing is operative only to the extent described in the relevant provisions of the Heritage Act, being in this instance s 57(1)(e).
The Applicant dismissed Stamford’s arguments with respect to the Codes SEPP (summarised above at [58]-[60]), arguing that the meaning of a statutory provision cannot be understood by reference to delegated legislation, be it the Codes SEPP or the listing of the Building (citing Mine Subsidence Board v Wambo Coal (2007) 154 LGERA 60 at [69]-[70] (Tobias JA) and Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at [3.41]).
In any event, the Applicant submitted, cl 1.16(1)(c) of the Codes SEPP, relied on by Stamford, poses a different test than s 57(1)(e) of the Heritage Act, the latter of which is broader. The effect of cl 1.16, the Applicant contended, is that development actually carried out on the curtilage cannot be exempt development, but it may be that development that is carried out beyond the curtilage may be exempt. However, the Applicant contended that these paragraphs do not assist in interpreting s 57(1)(e), nor do they indicate that development of land outside the footprint of the building (the land on which the building is situated) may not require an approval under the Heritage Act. The Applicant argued that, contrary to the Stamford submissions on this point, cl 1.16 does not reference the concept of a Heritage Act approval, rather they refer to the land on which the item is located being the heritage curtilage. There was nothing absurd, the Applicant said, about a construction that considered development outside the heritage curtilage as potentially exempt development for the purposes of the EPA Act but still requiring a Heritage Act approval.
Without wishing to return to the contentions regarding the Codes SEPP later in the judgment, the Court simply confirms that the Applicant’s responses to the Stamford submissions regarding the implications of the Codes SEPP are correct and so are adopted.

“Development in relation to land”

The Applicant argued that Stamford’s submissions on the term “development in relation to land” invited the Court into error and to ignore the language of s 57(1)(e).
As to Stamford’s argument, summarised above at [67], that the construction put forward by the Applicant leaves open to interpretation what land is caught depending on a subjective interpretation of impact, the Applicant submitted that this was not persuasive. The Applicant noted that it is not unusual in environmental law for provisions requiring evaluative judgments as gateways to approval processes, or as triggers for the requirement of a particular approval (citing s 5.7 of the EPA Act and s 2.1 of the Biodiversity Conservation Act 2016 by way of example).

“In relation to”

The Applicant noted that its argument was not that the phrase “in relation to” broadened the extent of “land” included in the listing, rather that the phrase has significance for the extent of the approval requirement, due to the wording of s 57(1)(e).

“Development”

In response to Stamford’s reference to the definition of “development” in s 4 of the HeritageAct (as noted at [69] above), the Applicant submitted that the defined term was “development”, not “development, in relation to land”. The distinction is crucial, it said, as the phrase “in relation to land” was to clarify that, development being a word capable of denoting a number of concepts in the English language, the concept of development being defined involved the use of land or the carrying out of a work on land or the erection of a building on land. The Applicant further noted that the term used in s 57(1)(e) was not “in relation to land” but rather “in relation to the land”.
The Applicant posited that, assuming the development in question was the erection of a building, incorporating the defined term “development” into s 57(1)(e) would result in the operative term being “the erection of a building on that land in relation to the land on which the building is situated”. Stamford, the Applicant said, would take this to mean “the erection of a building on the land on which the building is situated”, with the Applicant’s interpretation leading to the construction being “the erection of a building on land in relation to the land on which the building is situated”. The Applicant acknowledged that in both instances, following the incorporation of the defined term, adjustment is required to achieve a grammatical result (citing Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12), and that because of such grammatical difficulty a non-literal construction is required (citing Commissioner of Police (NSW) v Kennedy [2007] NSWCA 328, Basten JA at [44], and Herzfeld, Prince and Tully, Interpretation and Use of Legal Sources – The Laws of Australia (2013, Thomson Reuters), at [25.1.1050]).
The Applicant argued that, contrary to Stamford’s submission summarised above at [71], its construction of s 57(1)(e) does not render the exercise of defining the curtilage of a listed item of no effect, but that it simply means that s 57(1)(e) may require an approval for development both within and outside that curtilage.
The Applicant argued that, if Stamford was correct in the construction of s 57(1)(e) after insertion of the definition of “development” as meaning “development of the land on which the building is situated”, this would be a further reason for construing “land” in its cadastral sense in that subsection. Otherwise, the Applicant said, the approval requirement would be reduced to a requirement for an approval only when the development is occurring on top of the listed building – on the land on which it is situated unless land has its cadastral meaning.

Response to Heritage Council's submissions

As to the submissions of the Heritage Council, summarised at [72]-[74] above, the Applicant argued that it is not relevant that a component of a development not assessed under the Heritage Act could be assessed under the EPA Act, as the assessment under the EPA Act would be done by a Council or Minister (in this case, the First Respondent), not the statutory body with specialist expertise under the Heritage Act, being the Heritage Council.
The Applicant submitted that the approach taken by the Heritage Council, in providing “comments”, not only allows the consent authority to grant consent even if those comments are (as here) negative, but also abrogated the Heritage Council's responsibilities for determining whether or not approval should be given for the tower component, and if so on what terms.
With respect to the Heritage Council’s contention, summarised at [74] above, as to the effect of its refusal to provide approval for the proposed residential use of the Building, the Applicant’s response was that GTAs were required to be refused for the tower component of the Stamford DA, otherwise the proposal could be amended or approved subject to a condition that the residential use component not proceed.

CONSIDERATION

The primary contention between the parties is whether, in providing its GTAs for the Stamford DA, it was available to the Heritage Council to only provide GTAs with respect to the component of the proposed development directly concerning the Building, and merely “comments” with respect to the rest of the development.
The Applicant argued that, in this instance, as the Stamford DA provided for the carrying out of development in relation to the land on which the Building is situated, it thus required the approval of the Heritage Council, (as the relevant approval body), for the whole of the Stamford DA, (that is, including the tower component which is to be located outside the curtilage of the Building).
The Respondents agreed that such Heritage Council approval was required but that the scope of the approval required was limited to the development proposed within the curtilage specified in the listing, in other words, just within the footprint of the Building.
The question here is to determine the scope of the “development” for which an approval must be obtained from the approval body, the Heritage Council, prior to being carried out. Is it the whole of the development covered by a development application, is it only development that will take place within the curtilage of a listed item, or is it something in between or different to those contended alternatives?
These competing contentions necessitate an examination of the terms of s 57(1)(e), which requires that (relevantly), where a building is listed on the State Heritage Register, a person must not carry out any development in relation to the land on which the building is situated without an approval pursuant to Subdiv 1 of Div 3 of the Heritage Act:

Division 2 Controlled activities
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:
…
(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,

The object of the relevant phrase is “development”, which is described by reference to its relationship with the land on which the relevant heritage listed building sits.

“Land”

Much time was spent at the hearing on what meaning ought to be imputed to the phrase “land on which the building ... is situated” in s 57(1)(e). As summarised above, the Applicant argued that it ought to be read as referring to the lot on which the Building is situated. The Respondents disagreed, arguing that it ought to be read as referring to only the land within the curtilage specified in the listing.
“Land” is not defined in the Heritage Act. It is, as has been noted on many occasions, a word of general meaning. For instance, in relation to land in the context of the continuing use provisions of the EPA Act, in Scully v Leichhardt Council (1994) 85 LGERA 109, at 110 Pearlman CJ noted:

“The task before the Court is to determine the interpretation of cl 41(2) and in particular the word ‘land’ in that clause. The word ‘land’ is a word of general meaning. It does not of itself suggest any specific limitation of size or measurement or any specifically identifiable area, such as is suggested by the word ‘allotment’. It is necessary, then, to consider the context in which the word appears, and the scope and purpose of the relevant statutory provisions, in order to determine how the word ‘land’ is to be construed.
The actual words of the phrase ‘... only on the land on which the building ... was erected’, does not assist in determining to what ‘land’ CL41(2) refers. The use of the word ‘land’ suggests an area of land, but it is not apparent from the phrase itself precisely what that area is. Assistance must be sought from a consideration of the scope and purpose of the statutory provisions.”

This analysis is applicable in the circumstances of this case. Land is a word of general meaning and is not defined in the Heritage Act.
Further, the definition of “land” set out in s 21 of the Interpretation Act (see [75] above) as relied upon by the Applicant, is not determinative of the meaning of the word in the context of the Heritage Act (see also Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 per Macfarlan JA at [9], for an examination of this issue with respect to the Valuation of Land Act 1916). The definition of “land” in the Interpretation Act is not prescriptive, rather it is an instance of a definition by inclusion, wherein a range of options are included as instances of “land”. Other meanings of “land” not included in the definition, are not excluded as, clearly, if the circumstances warrant it such other meanings may be pertinent. I see no reason to depart from the orthodox approach to construction, whereby a word defined by inclusion is read to be an expansion upon the ordinary meaning of that word (see Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at [6.60]-[6.63]). For instance, in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155; at [42], McColl JA (with whom Beazley JA agreed) said:

“There is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined: Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 588-589, per Barwick CJ; applied Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329-330 by Toohey J, McHugh J and Gummow J; see also Deeble v Robinson [1954] 1 QB 77 at 81, per Denning LJ.”

This interpretation is bolstered by examining the matters listed in that s 21 definition, none of which fall within the ordinary meaning of the word “land”, being, to use the words of the Applicant, the “physical or topographical” sense of the word.
That is, meaning of the word “land” in the instance of s 57(1)(e) cannot be taken as a hard and fast rule, meaning for example, “lot”, in the tenement sense, but will depend on the circumstances of each case. Stamford’s argument in relation to, for example, a university campus comprising large lots on which there are sited some listed heritage buildings, as set out above at [61], is persuasive. Or, for example, a large rural property, say an outback sheep station covering thousands of hectares, on which there is a listed heritage homestead. It would be nonsensical for development elsewhere on such property, non-proximate to the heritage item, and not having an impact on the heritage values of that item, to trigger a requirement for approval of the Heritage Council merely because it is on the same lot. The relevant nexus, required by s 57(1)(e) (and discussed below at [126] and following), would be absent.
Further, if the “land” were simply to be the lot in a tenement sense, unsatisfactory implications (in the context of the objects of the Heritage Act) are conceivable. For instance, if it were simply the case that the lot/tenement was the touchstone, a development on another lot that may be much closer to the heritage item (compared to the instance of the university campus or the outback station) could, arguably, be ignored simply because it is on a different lot. Such a nearby development would not necessarily require Heritage Council approval, if “land” in s 57(1)(e) were simply taken to mean lot or parcel in the tenement sense.
Therefore, I am not persuaded that “land” in s 57(1)(e) ought to be read as “lot” for the above reasons. As said earlier, conceivably there may be instances where a lot or tenement relationship does provide a relevant nexus, but, in the Court’s opinion, there is a nuance to s 57(1)(e) which must embrace a qualitative assessment in determining the relationship between a proposed development and the “land” on which the listed building is situated.
However, with the Applicant failing to convince the Court that “land” is necessarily a reference to the title lot, the Court is concurrently of the view that Stamford has failed with its argument that “land” should be read to merely mean the footprint of the building, the curtilage as defined in the heritage listing of the Building. If this approach was the case, it would render s 57(1)(e) redundant with respect to heritage items – there is already provision addressing the damaging or altering of a building. Would then s 57(1)(e) simply be relating to excavation or works on the footprint of the building (that did not alter or demolish the building – those being covered by subss (a) and (f))? Importantly, in understanding its scope, it should be kept in mind that subs (e) specifically relates to the “land”, not to the building, work, or item situated upon the land.
In the context of its arguments with respect to the meaning of “the land”, the Applicant submitted that the Interpretation Act at s 33 enjoins the Court, in its consideration of a provision of an Act, to prefer a construction that would promote the purpose or object underlying the Act to a construction that would not promote that purpose or object.
It is to be noted that s 33 in the Interpretation Act, does not require, as its federal counterpart (s 15AA, Acts Interpretation Act 1901 (Cth), after amendment by the Acts Interpretation Amendment Act 2011) does, that the construction that best achieves the object or purpose of the Act is to be preferred. In reviewing the equivalent provision to s 33 of the NSW Interpretation Act in Victoria (s 35(a), Interpretation of Legislation Act 1984 (Vic)), the High Court in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, observed that:

“The choice directed by s 35(a) … is not as to the construction that ‘will best achieve’ the object of the Act. Rather, it is a limited choice between ‘a construction that would promote the purpose or object [of the Act] and one that would not promote that purpose or object’”

The question then, for s 33 of the Interpretation Act to be applicable here, is whether the construction favoured by one or other of the parties with respect to “land” would not promote the purpose or object of the Act. Arguably, the stances of both the Applicant and Stamford promote purposes or objects of the Act, albeit with differential effect.
In this context, although already set out in full earlier in [26], the Court returns to the objects of the Heritage Act as set out in s 3 and, relevantly, refers to the following objects which are pertinent to this particular discussion :

3   Objects
The objects of this Act are as follows:
…
(b)   to encourage the conservation of the State’s heritage,
…
(d)   to provide for the interim protection of items of State heritage significance,
(e)    to encourage the adaptive reuse of items of State heritage significance,
…

The interpretation of “land” in s 57(1)(e) favoured by the Applicant would have the effect of requiring Heritage Council approval for development proposed on a lot on which there is a heritage listed item, regardless of whether the development is proposed on that portion of the land which comprises the footprint of the heritage item. In other words, the Applicant’s interpretation of s 57(1)(e) would give the provision a wider ambit, arguably providing a greater protection to the listed building. This would be the case because developments “in relation to the land”, as distinct from developments restricted to the land designated in the heritage listing, would require approval. Developments which might potentially have impacts might thereby be refused or approved with limiting conditions. Stamford’s proposition with respect to the definition of “land” would mean that only development in relation to the actual land described in the listing of a heritage item (being the defined footprint in this case) would require the approval of the Heritage Council, however land elsewhere on the relevant parcel may not (on the other hand, it may – see the Court’s discussion of “in relation to” from [119] below).
Such an interpretation by Stamford, in the Court’s view, still promotes the objective of the Heritage Act, as there remains a requirement for the approval of the specialist Heritage Council for development on the land on which an item is situated. It may not promote those objects to the degree that the interpretation favoured by the Applicant does, but it nonetheless does so. As such, s 33 of the Interpretation Act is not called upon. Nevertheless, the fact that s 33 is not prescriptive in the circumstances of this case, does not mean the heritage protection implications of the differing interpretations of s 57(1) is an irrelevant consideration when the Court must decide which interpretation is to be preferred.
In this matter it is not necessary to determine with exactitude the precise scope of “land”, as “in relation to” does the relevant work. The task is to determine a relevant nexus, guided by the words “in relation to”, as those words are the touchstone to the correct interpretation of the provision.

“In relation to”

As with “land”, the phrase “in relation to” is one capable of having a range of meanings. In any particular provision, the phrase takes its meaning from the subject matter of the enquiry, the legislative history, and the facts of a particular case. As was noted by French CJ and Hayne J in Travelex Ltd v Commissioner of Taxation at [25]:

“It may readily be accepted that ‘in relation to’ is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that ‘the subject matter of the enquiry, the legislative history, and the facts of the case’ are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply ‘in relation to’ rights”.

In North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247, Kirby P said (at 245):

“In Towne v Eisner 245 US 418 (1918), Holmes J, in the Supreme Court of the United States of America, said (at 425):
‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.’”

The legislative context within which the phrase “in relation to” sits, in this instance, is the primary statute by which the State of NSW identifies, protects, and conserves places, buildings, works, relics, moveable objects and precincts that are of heritage significance to the State, as is apparent from s 3 of the Heritage Act. The provision in question – s 57 – deals with the effect of interim heritage orders and listing on the State Heritage Register. These two mechanisms, the making of interim heritage orders or the listing of an item on the State Heritage Register, are the primary pathways provided by the Heritage Act to effect its objects, and in particular those objects listed at ss 3(b), (c), and (d).
That is, s 57, as the Applicant submitted, does serve a protective purpose. That, in the Court’s opinion, is indisputable.
Would such a purpose be served by accepting Stamford’s argument that the proposed tower component is not a development “in relation to” the land on which the Building is situated? The Applicant, as noted above at [42], pointed to the Report for Decision, which noted that (materially):

“The proposed erection of the tower would permanently damage the [Building’s] ability to reflect the status of Macquarie and Bridge Streets as a prestige address for many government institutions and would have major adverse impacts on the setting of the precinct that defines the SHR values of the [Building].”

That the Heritage Council accepted and agreed with this assessment is apparent from the “comments” made with respect to the tower component in its GTAs in relation to the Stamford DA.
Section 33 of the Interpretation Act is relevant here. On the Applicant’s case, development which, in the opinion of the specialist Heritage Council, would have major adverse impacts on the heritage values of the Building would be within the ambit of the Heritage Council’s powers of approval or refusal. Such development would be “in relation to” the land on which the Building is situated, having the requisite nexus to trigger the operation and application of the provision. Conversely, on the Respondents’ arguments, the approval of the Heritage Council was not necessary for such a development. In the context of the protective intent of s 57, and indeed the Heritage Act generally, the interpretation proffered by the Applicant promotes the objects of the Act, whereas that of the Third Respondent does not promote those objects, precluding, as it would, the Heritage Council from providing, approving, or refusing to provide GTAs in respect of development that would have an adverse impact on the heritage values of a listed item. If follows that the Applicant’s interpretation ought, as per s 33 of the Interpretation Act, be preferred.

A relevant nexus

Thus, generally, in determining the operation of s 57(1)(e), “development in relation to the land on which the building… is situated”, guided by the words “in relation to”, a relevant nexus is to be identified. Depending upon the circumstances in any particular instance, the degree of nexus required will vary. Relevant in determining the scope of such a nexus may include, for instance, the lot identification of the land, the ambit of the proposed development in question, the scope of the listing, or a combination of some or all of these options. However, in all instances, with s 57(1)(e), in determining the relevant nexus, there is both a factual and qualitative assessment involved in deciding whether the subject development is in relation to the land on which the building is situated. The anchors in this task are, first, the relationship between the land and the development (which is more qualitative in determination) and, then, the land (which is more factual in determination). The contextual setting of the proposed development will inevitably be an important factor, in determining whether that development is “in relation to” the land on which the listed building is situated.
Stamford argued (as summarised earlier at [57]) that if the Court were to accept the Applicant’s propositions and accept that the words “in relation to the land” had a wider ambit, then the identification of curtilage pursuant to s 32(3)(a), for the purpose of listing, would be redundant, indeed meaningless. The Court rejects that argument. The Court is of the view that the identification requirements for the purposes of listing serve a purpose quite distinct from the identification, pursuant to s 57(1)(e), of “the land on which the building… is situated”. Following listing and identification pursuant to s 32(3)(a), there can be no doubt that the prime focus of the heritage listing has been identified – the listed item which remains at the heart of the exercise. That prime focus, the listed item, is the pivot of the heritage protection process. With that pivot in mind, s 57(1) effectively addresses a potentially endangering element, a proposed development, aimed at a consideration of the impact on the land on which the listed item is situated. The scheme necessarily requires a consideration of the wider context, not just curtilage, but the implications for the wider “land” (which must have the relevant nexus to the development in question). Clearly, inherent in such an approach is an acceptance that one context of a listed building, being the land upon which it is situated, may conceivably be impacted upon by a development and so requires consideration by the Heritage Council, leading to either approval or refusal.
Accordingly, far from the identification of the heritage item by reference to curtilage, pursuant to s 32(3)(a), being rendered meaningless by the Applicant’s contended approach, contrary to Project Blue Sky, the precise identification of the listed building has great utility as precisely identifying the pivotal item, that which is at the heart of the heritage listing, so as to properly “inform” the consideration of potential impacts on the relevant context of that listed item – the land upon which it is situated.
In this regard, the Court finds the Applicant’s written submissions at par 13, dealing with its second argument with respect to “in relation to”, to be persuasive. There is utility in quoting that paragraph in full.

“13. Secondly, even the development (the tower component) that is to be carried out beyond the building's curtilage is ‘in relation to’ the land within the building's curtilage. This is so whether or not ‘land’ in s 57(1)(e) is construed as the building curtilage or the whole Torrens lot, but if ‘land’ in s 57 is given that broader meaning that is a third reason why the Stamford DA is in relation to the land on which the building is situated. But it is not necessary for this meaning of ‘land’ to be adopted for the Stamford DA to be construed as for the carrying out of the kind of development identified in s 57(1)(e). The phrase ‘in relation to’ has a very broad meaning when used in legislation, and takes its meaning from the subject matter of the provision, the legislative history and the facts of the particular case: Travelex Pty Ltd v Commissioner of Taxation (2010) 84 ALJR 683 at 688; 270 ALR 253 at 259 (French CJ and Hayne J). Here, the protective purpose of s57 and the Heritage Act and the concern of heritage protection with not only physical impacts but intangible matters such as the relationship of an item or building to others or a precinct in terms of heritage significance and value suggests that it would be incorrect to regard development outside a heritage curtilage as defined in the listing of a building as development that cannot be ‘in relation to’ the land within that curtilage. The Heritage Council's own Report for Decision of 7 March 2018 (Tab 10, Exhibit DOD-1) demonstrates this, including with its reasoning at section 1.1 that ‘the integrated development application (IDA), if approved, would materially affect the significance of the Health Department Building (former) as an item of the environmental heritage; because the proposed erection of the tower would permanently damage the Item's ability to reflect the status of Macquarie and Bridge Streets as a prestige address for many government institutions and would have major adverse impacts on the setting of the precinct that defines the SHR values of the item’ (emphasis in original). See also, in particular, sections 5.2,6 and 6.0 and 7.1.1 in that report. That is, the tower impacts on the heritage significance of the building and its curtilage (or the ‘land’ on which it is situated if ‘land’ is used in the narrow sense as limited to that curtilage). It follows that the tower is development in relation to the building and its curtilage (or the ‘land’ within the meaning of s 57(1)(e), ‘land’ being used in the narrow sense). Any other construction of s57(1)(e) would emasculate the protective effect of the section and reduce it to a residual requirement for approval where there was physical damage to the building or its curtilage, which is just not what the section says at all.”

As summarised at [63] above, Stamford suggested that if the Applicant’s contention was adopted by the Court, thereby embracing the prospect of the Heritage Council being lawfully able to provide GTAs with respect to proposed development beyond the curtilage of the listed Building, it would effectively allow the imposition of conditions carte blanche beyond the Heritage Council’s power under the Heritage Act The Court rejects this argument. The relevant nexus between a proposed development and “the land on which the building … is situated” necessarily will always constrain the approval and condition imposing power of the Heritage Council. Although the assessment of the relevant nexus is necessarily a qualitative exercise carried out by the expert Council, it is not an imprecise laissez-faire exercise. The “land” on which the listed building is situated necessarily anchors the assessment in place, and the parameters of any conditions that may be considered appropriate to impose will always be contextual, and will depend on the circumstances arising from any particular proposed development, guided by an assessment of how it may impact on the land upon which the listed building is situated.

Relevance of the listing

In conclusion, drawing together the various threads of the Court’s interpretation of the statutory scheme inherent in s 57(1), the Court summarises its analysis of the relevant elements seriatum:

The focus of s 57(1)(e) is “development in relation to the land”.

Which land is the focus of the words “the land”? “The land”, in context, means the land on which the building is situated.

Which building is being referred to? Per the chapeau to s 57(1)(e), the building, again in context, is a building which is the subject of a listing on the State Heritage Register which applies to that building.

So focussing on the State Heritage Register listing, under s 32(3) a listing of an item can be expressed, if the item is a building, with reference to the curtilage of that building or the site of that building, being the curtilage or site specified or described in the listing.

It is to be noted that s 32(3), which is a provision entirely related to the listing process, is so expressed that it contemplates and provides for an option: it is not mandatory that the listing be expressed to apply to either curtilage or to site (but presumably is to be to one or the other). Neither “curtilage” nor “site” is defined in the Heritage Act.

Dictionary definitions can be used in aid of interpretation. Relevant definition of “curtilage” and “site” are respectively found in the Macquarie Dictionary (revised 3rd ed, 2001, Macquarie University press) as follows:

“Curtilage
the area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.
Site –
noun   1.  the position of a town, building, etc., especially as to its environment.
2.  the area on which anything, as a building, is, has been or is to be situated.
verb (t)   (sited, siting) – to locate; place; provide with a site: they sited the school next to the oval.

In the Shorter Oxford Dictionary on Historical Principles (3rd ed 1980, Clarendon Press, Oxford), relevant meanings are as follows:

“Curtilage - A small court, yard or piece of ground attached to a dwelling-house, and forming one enclosure with it.
Site 1 …
2. The situation or position of a place, town, building etc
3. The ground or area upon which a building, town, etc, has been built, or which is set apart for some purpose. Also, a plot, or number of plots, of land intended or suitable for building.”

The statutory process therefore contemplates that there can be a distinction between curtilage and site. “Site” being a term in common parlance that relates to where the building is situated, whereas “curtilage” is more confined, embracing enclosure, frequently identified by title but not necessarily. In this case, the curtilage of the Building was identified by scale plan (most probably determined by survey).

In this case, the listing of the Building which the Minister approved incorporated the approach of identifying curtilage by utilising a plan showing a scaled diagonal hatched area. The legend on the plan confirmed the area so hatched was the Building’s curtilage.

With the statutory scheme within s 57(1)(e) focussed on the land on which the (listed) building is situated, given the use of the word “situated”, the land in question can sensibly be described as the “site” of the building. Given that s 32(3) contemplates a distinction between a site of a listed building and the curtilage of a listed building, and that the latter is usually a more constrained designation of area, precisely delineating the boundaries of a building, then the Court concludes that both “site” (in terms of s 32(3)), and where the building “is situated” (in terms of s 57(1)(e)) refer to an area beyond and greater than the curtilage of a building.

It is instructive to note that s 57(1)(e) does not contain any words limiting the words “the land on which the building … is situated” to the curtilage option (as might be identified pursuant to s 32(3)). To the contrary, the subsection can, and should, be interpreted as deliberately referring to the broader term of site.

It therefore logically follows that the ambit or scope of s 57(1)(e) is to have the Heritage Council focus on the implications of development in relation to the land on which the Building is situated, which is broader, or wider, or more expansive, than the curtilage of the Building.

Interpreting s 57(1)(e) in the manner explained by the Court, in particular the touchstone words “in relation to”, is more consistent with the objectives of the Heritage Act, as explained above. It necessarily follows that the Court rejects Stamford’s submissions summarised at [71] that this approach necessarily defies “law or logic”.

Delineating the reaches of the site of a listed building, or, in terms of s 57(1)(e), the extent of the land on which the listed building is situated, must necessarily be determined on a case by case basis, as the relevant nexus between the proposed development under examination and the land on which the listed building is situated is determined.

As confirmed earlier in this judgment, the case by case determination of the relevant nexus is not a process foreign to heritage, planning or environmental laws. Such a qualitative exercise is certainly not beyond the “qualifications, knowledge and skills” of an expert body such as the Heritage Council. In this regard, see s 8 of the Heritage Act. “Reasonable minds may differ”, counsel for Stamford submitted (see earlier at [67]) in determining the extent or nature of impact of a proposed development, but so do reasonable expert minds frequently differ in the multiplicity of Class 1 planning matters that come before this Court.

Further contentions raised by Stamford

There were a range of other arguments raised by Stamford in response to the Applicant’s case. As should be clear from the Court’s summary of the parties’ submissions, set out in summary earlier in this judgment, the Court has considered all the competing contentions placed before it. As will be apparent, the Court has found itself largely in agreement with the Applicant’s submissions, differing in those respects which have been earlier highlighted.
With respect to Stamford’s submissions summarised at [68] above regarding the definition of “development” as found in s 4 of the Act, the Court prefers the approach submitted by the Applicant summarised at [90]-[91] above, noting the grammatical adjustment that may, strictly, be required. The defined term is “development”, not a more restricted definition of development with respect to particular land (that is, the defined term is not “development, in relation to land”, as Stamford contended). When the words “that land” in the definition of “development” in s 4 are considered, there are no material implications for the interpretation of s 57(1)(e) favoured by the Court and discussed above. That is, even when the s 4 definition of “development” is inserted in the provision, the operative words in s 57(1)(e) remain with respect to development that may be carried out in relation to “the land” on which the listed building is situated. With the Court, in this case, concluding that “the land” in question is not only the curtilage of the Building but rather land that has the relevant nexus to the development in question on which the Building is situated, the s 4 definition of “development” does not have the effect pressed by Stamford.
Therefore, applying its interpretation of the legislative scheme, the Court is satisfied that there was a relevant nexus between the proposed development and the land on which the Building is situated and that the Heritage Council correctly identified that nexus in the “comments” it provided in response to the tower component of the proposed development within the Stamford DA. In the instance of the Stamford DA, the Heritage Council was legally obliged, when required to provide its GTAs (pursuant to s 4.47(2) of the EPA Act) or advise that it will not grant approval (pursuant to s 4.47(4)), as an approval authority with respect to an integrated development application, to respond to so much of the development as it considered had a relevant nexus to the land on which the Building is situated.
Given the views of the Heritage Council, earlier referred to in [42], which considered that the tower component of the Stamford DA would have an adverse impact on the heritage values of the Building, the Heritage Council was not required by law to restrict its formal response under s 4.47 to just those elements of the proposal which specifically dealt with the Building within its listed curtilage. Given its formulated views, the Heritage Council was required to inform the consent authority that it would not have granted its approval. The Heritage Council misdirected itself when it believed it was legally constrained to only provide GTAs with respect to the components of the development that proposed alterations to the Building (within its curtilage) itself.
Lest there be any doubt, with respect to the Court’s interpretation of s 57(1)(e), although the Court’s finding is in the context of the Stamford DA and its implications for the land upon which the Building is situated, the Court’s determination is not a merits assessment of the tower proposal which was considered and then merely commented upon by the Heritage Council. Rather, the Court’s determination is an objective interpretation of the relevant legislative provisions. To the extent that the Stamford DA illustrates how a development outside the curtilage of a listed item, in this case the Building, ought be taken into consideration by the Heritage Council when exercising its statutory power under s57(1)(e), it should be seen as an example of how the provision should operate thereby clarifying the broader parameters of the Heritage Council’s powers, greater than that which it envisaged at the time it provided its GTAs in response to the Stamford DA.

COSTS

This is a case where costs should follow the event. The Applicant has succeeded, so therefore should be entitled to have its costs covered.
There were three respondents in the proceedings, all of whom were represented at the hearing. The First Respondent was clearly made a party to the proceedings so as to be amenable to any orders the Court might make relevant to the future exercise of its powers. The first order sought by the Applicant, being in the nature of a writ of prohibition, is such an order. The First Respondent, although not formally a submitting party, being represented by its solicitor Mr Dyer, effectively performed a benign observer role during the course of the proceedings, not submitting material prior to the hearing, nor making submissions during the hearing. The Court has concluded that the First Respondent should cover its own costs, but not be required to contribute to the costs of the Applicant.
The Heritage Council was the decision-maker, with its primary decision giving rise to the GTAs examined in these proceedings. Further, the Heritage Council was an active participant in all stages of the proceedings, both before and at the hearing. The Court has concluded that it should share in the payment of the Applicant’s costs.

Stamford, was an active participant in all stages of the proceedings. Further, not only was Stamford responsible for the Stamford DA which gave rise to the Heritage Council’s decision and its GTAs, it was the primary contradictor to the Applicant’s case in the proceedings. The Court has concluded that Stamford should share equally in the payment of the Applicant’s costs.
Therefore the Court will order that the Heritage Council and Stamford shall pay the Applicant’s costs in the proceedings, in equal shares, on the normal basis, as assessed or agreed.

ORDERS

The Court orders as follows:

The First Respondent is prohibited from determining the integrated development application lodged by the Third Respondent on 20 November 2017 in relation to the property at 93-97 Macquarie Street, Sydney (legally described as Lot 12 in Deposited Plan 1197140) identified as development application number D/2017/1609 (Stamford DA), pending the provision of a lawful decision by the Second Respondent under s 4.47 (formerly s 91A) of the Environmental Planning and Assessment Act 1979 (EPA Act) and cl 70 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) concerning the general terms of approval in relation to the Stamford DA (including whether or not it will grant an approval under s 63 of the Heritage Act 1977 (NSW) (Heritage Act).

The Second Respondent is ordered to provide to the Council of the City of Sydney (the delegate of the First Respondent) a lawful decision by the Second Respondent under s 4.47 (formerly s 91A) of the EPA Act and cl 70 of the EPA Regulation concerning the general terms of approval in relation to the Stamford DA (including whether or not it will grant an approval under s 63 of the Heritage Act).

The Second and Third Respondents shall pay the Applicant’s costs in the proceedings, in equal shares, on the normal basis, as assessed or agreed.

********

ANNEXURE A - ANNEXURE A (292 KB, pdf) ANNEXURE A (292 KB, pdf)

ANNEXURE B - ANNEXURE B (147 KB, pdf)

Decision last updated: 13 November 2018

Medium Neutral Citation:	Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179
Hearing dates:	1 August 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See orders at [142]
Catchwords:	JUDICIAL REVIEW – integrated development – whether permissible for approval authority Heritage Council to provide comments, rather than general terms of approval, with respect to portion of development application – general terms of approval with respect to development outside curtilage of heritage item required where there is a relevant nexus – relevant nexus apparent from Heritage Council decision – misconstruction of statutory power – jurisdictional error established WORDS AND PHRASES – “land” – definition of land in s 57(1)(e) not restricted to curtilage of item or to lot on which item sits – to be determined on a case by case basis WORDS AND PHRASES – “in relation to” – protective purpose of the Heritage Act 1977 – interpretation promoting that purpose preferred to interpretation not promoting that purpose
Legislation Cited:	Acts Interpretation Act 1901 (Cth) s 15AA Acts Interpretation Amendment Act 2011(Cth) Biodiversity Conservation Act 2016 s 2.1 City of Sydney Act 1988 ss 31, 40 Environmental Planning and Assessment Act 1979 ss 4.15, 4.44-4.51, 5.7 Environmental Planning and Assessment Regulation 2000 cll 66, 70 Heritage Act 1977 ss 3, 4, 32, 56, 57, 63, 63B Interpretation Act 1987 ss 21, 33 Interpretation of Legislation Act 1984 (Vic) s 35 Standard Instrument – Principal Local Environmental Plan 2012 cl 5.10 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 1.16 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Sydney Local Environmental Plan 2012 cl 5.10, Sch 5
Cases Cited:	Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Commissioner of Police (NSW) v Kennedy [2007] NSWCA 328 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 Mine Subsidence Board v Wambo Coal (2007) 154 LGERA 60 North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247 Pathold No 176 Pty Ltd v Minister for Transport Services [2005] NSWLEC 184 People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Scully v Leichhardt Council (1994) 85 LGERA 109 Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189 Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33
Texts Cited:	Herzfeld, Prince and Tully, Interpretation and Use of Legal Sources – The Laws of Australia (2013, Thomson Reuters) Macquarie Dictionary (revised 3rd ed, 2001, Macquarie University press) Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) Shorter Oxford Dictionary on Historical Principles (3rd ed 1980, Clarendon Press)
Category:	Principal judgment
Parties:	Mulpha Australia Limited (Applicant) Central Sydney Planning Committee (First Respondent) Heritage Council of New South Wales (Second Respondent) Stamford Property Services Pty Ltd (Third Respondent)
Representation:	COUNSEL: N Hutley SC and C Ireland (Applicant) B Dyer (Solicitor) (First Respondent) S Duggan SC and J McKelvey (Second Respondent) B Walker SC and M Astill (Third Respondent) SOLICITORS: Addisons Lawyers (Applicant) City of Sydney (First Respondent) Department of Planning and Environment (Second Respondent) Norton Rose Fulbright (Third Respondent)
File Number(s):	2018/144179