National Australia Bank Ltd v Drummoyne Municipal Council

[1988] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:	National Australia Bank Ltd v Drummoyne Municipal Council [1988] NSWLEC 136
PARTIES:	APPLICANT National Australia Bank Ltd RESPONDENT Drummoyne Municipal Council
FILE NUMBER(S):	10167 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Drummoyne Land Environmental Plan, 1986 Environmental Planning And Assessment Act Heritage Act 1977
CASES CITED:	Edwards v. Onehunga High School Board; Parramatta City Council v. Hale (1982); Queensland v. The Commonwealth (1988); Sydney City Council v. Ileanace Pty. Ltd (1984); Foley v. Padley (1984) ; Boland v. Canadian National Railway Company (1927)
DATES OF HEARING:
DATE OF JUDGMENT:	09/20/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

-

Bignold J.: This is an appeal pursuant to s.97 of the Environmental Planning and Assessment Act 1979 against the determination of the Respondent refusing development consent to an application to erect a two storey commercial building (comprising bank premises and shop at ground floor level and commercial office space at 1st floor level) on land known as No. 94 Great North Road, Five Dock.

The aforesaid land is currently developed by a two storey bank building (although not used for the past 2 years) and a free standing garage. The proposed development will involve the total demolition of these buildings.

The Respondent refused development consent for the following reason:-

"On the basis of the inclusion of the property in Schedule 4 of Development Control Plan No. 8 - Items of Environmental Heritage."

In notifying the Applicant of its determination of the development application the Respondent advised as follows:-

"In rejecting the application, Council resolved that you be advised that further consideration would be given to an amended development application providing for the retention of that part of the building painted white, comprising the front elevation and return walls."

The Applicant did not submit to the Respondent an amended development application. Instead it exercised its right of appeal to this Court against the Applicant's determination.

On the hearing of the appeal the Applicant has raised as a preliminary question of law whether the existing building situate at No. 94 Great North Road is an item of environmental heritage within the meaning of the Drummoyne Local Environmental Plan 1986.

The Applicant submitted that this question should be answered in the negative. The Respondent submitted to the contrary.

In the event of the Court finding the subject building to be an item of environmental heritage for the purposes of the aforesaid local environmental plan evidence was called by each party going to the merits of the case ie whether or not as a matter of discretionary judgment the existing building (or more particularly its facade and return walls) should be retained.

The first question is whether the existing building is an item of environmental heritage.

Before considering the competing submissions it is necessary to set forth the relevant statutory context.

The relevant planning instrument is the Drummoyne Local Environmental Plan 1986 (which came into force on 30th January, 1987) hereinafter referred to as L.E.P. The subject land is included within zone No. 3(a) "Business General Zone". In terms of cl. 9 of the L.E.P. the proposed development is development that may be carried out only with development consent granted by the Respondent.

Cll. 18 to 22 (inclusive) of the L.E.P. relate to "items of environmental heritage" a term defined by cl.5(1) as follows:-

"In this plan, except insofar as the context or subject matter otherwise indicates or requires - ...... 'items of environmental heritage' means those buildings, works, relics or places of historic, scientific, cultural, social, architectural, archaeological, natural or aesthetic significance to Drummoyne -

(a) described in Schedule 1, or

(b) identified as items of environmental heritage in a development control plan."

Schedule 1 describes three separate buildings situate in the Drummoyne Municipality but does not include the existing building on the subject land.

The effect of the aforesaid cll.18 to 22 (incl.) may at this stage be briefly stated as follows:-

"Clause 18 prohibits without the consent of the Council a number of acts in respect of an item of environmental heritage including -

(c) demolition of ....... the building; and

(d) erection of a building on the land on which the building is situated."

Clause 19 broadens the range of developments that the Council may permit in relation to items of environmental heritage where the Council is satisfied that the conservation of the building depends upon such permission being granted.

Clause 20 applies the provisions of ss.84, 85, 86, 87(1) and 90 of the Environmental Planning and Assessment Act to certain acts in relation to items of environmental heritage including "(a) the demolition of a building ......" (but not including "partial demolition" not adversely affecting the significance of the building as part of the environmental heritage).

Clause 21 forbids the Council from granting consent to a development application in respect of an item of environmental heritage unless it has made a number of specific assessments including "(a) the significance of the item .......".

Clause 22 forbids the Council from granting consent to development in the vicinity of an item of environmental heritage unless it has made an assessment of the effect of that development on that item.

Development Control Plan No. 8 - Items of Environmental Heritage (hereinafter referred to as D.C.P. No. 8) is in the following terms:-

"1. CITATION

This Plan may be cited as Development Control Plan No. 8 - Items of Environmental Heritage.

2. AIMS, OBJECTIVES, ETC.

This Plan aims to ensure the aims and objectives specified in Clause 2(e) of the Drummoyne Local Environmental Plan, 1986 are achieved.

3. LAND TO WHICH PLAN APPLIES

This Plan applies to all land within the Municipality of Drummoyne described in Schedules (1) to (4).

4. INTERPRETATION

In this Plan, "items of environmental heritage" has the meaning ascribed to it in Clause 5(1) of the Drummoyne Local Environmental Plan, 1986.

5. GENERAL PROVISIONS

The provisions of Clauses 18 to 22 inclusive of the Drummoyne Local Environmental Plan, 1986 are adopted for the purpose of this Plan."

Schedules 1 to 4 (inclusive) describe various buildings by name and/or by street address or location. Schedule 1 is sub-titled "Register of the National Estate" and contains only one description of building namely "Abbotsford House". Schedule 2 is subtitled "Register of the Heritage Council of NSW" and contains 4 descriptions of buildings (including "Chatham House" and the "Bowls Clubhouse". (It may be noted in passing that Schedules 1 and 2 read together include the 3 items of environmental heritage described in Schedule 1 of the Drummoyne Local Environmental Plan 1986). Schedule 3 is subtitled "Register of National Trust of Australia (NSW)" and contains 19 descriptions of buildings. Schedule 4 is subtitled "Register of Drummoyne Municipal Council" and contains 7 descriptions of buildings including the following:-

"Former Commercial Banking Company banking chambers and residence, No. 94 Great North Road, Five Dock."

The Applicant advances 3 separate and alternative grounds in support of its contention that the existing building is not an item of environmental heritage as defined by cl. 5(1) of the L.E. P. viz:-

(i) D.C.P. No. 8 does not identify it as an item of environmental heritage;

(ii) Since there was no reasonable basis open to the Council to so identify it as an item of environmental heritage in D.C.P. No. 8 its identification is void and of no effect; and

(iii) D.C.P. No. 8 is invalid being ultra vires s.72 of the Environmental Planning and Assessment Act.

In the course of argument a further submission was advanced by the Applicant to the effect that if, assuming ground (iii) were sustained, it was nonetheless possible, as a matter of construction, to hold that the reference to "a development control plan" in the statutory definition of 'items of environmental heritage' was not a reference to a development control plan referred to in s.72 of the Act (but to some other plan satisfying the description "development control plan") that plan was also invalid because it was the result of an unauthorised delegation of legislative power.

It will be convenient to deal with each of the Applicant's arguments separately.

Submission (i) The Applicant submits that D.C.P. No. 8 neither in form nor effect identifies items of environmental heritage.

Although it may be accepted that the draftsmanship of D.C.P. No. 8 is open to obvious and valid criticism I am of the opinion that, when read as a whole (including its express link with the L.E.P.) it does identify items of environmental heritage, including the subject building.

The means of such identification is achieved primarily by the enumeration, by description of buildings in the four Schedules to D.C.P. No. 8. Schedules 1, 2 and 3 are subtitled in a manner that leaves little doubt that the buildings so described are included in the public registers therein referred to and that those public registers are commonly known to be concerned with matters pertaining to aspects of our Nation's cultural heritage. In this context it is reasonable to construe Schedule 4 as listing buildings of "local heritage" value to the Municipality ie not ranking as highly or broadly as those buildings listed in Schedules 1, 2 and 3.

It is true that the four Schedules are only specifically referred to in cl.3 which describes the land to which D.C.P. No. 8 applies (as it is required to do by Cl. 19(2) of the Environmental Planning and Assessment Regulation 1980).

However in my opinion cl.3 achieves more than this, and when read in conjunction with the other provisions of the D.C.P. No. 8, can legitimately be construed as identifying (by descriptions of buildings) items of environmental heritage within the meaning of paragraph (b) of the definition of "items of environmental heritage" in cl.5(1) of the L.E.P.

Although the Applicant's submission that D.C.P. No. 8 could very simply and directly have identified items of environmental heritage cannot be gainsaid, it does not follow that because D.C.P. No. 8 unfortunately does not employ this simple and direct approach it therefore fails to identify items of environmental heritage.

It is not necessary to conclude whether D.C.P. No. 8 has any additional effect beyond identifying items of environmental heritage, although it would appear desirable in the interests of certainty that the somewhat confused relationship between it and the L.E.P. be clarified.

Accordingly I reject the Applicant's argument and hold that the subject building is identified by D.C. P. No. 8 as an item of environmental heritage.

Submission (ii) The Applicant's argument relies upon the fact that the written material from the Respondent's files (produced in response to a call to produce "all documents relating to the preparation and making of D.C.P. No. 8") did not contain material upon which the Respondent could have reasonably concluded that the subject building was an item of environmental heritage. As a consequence, according to the Applicant's submission, the inclusion in Schedule 4 of D.C.P. No. 8 of the subject building, is invalid and of no effect.

This submission appears to be founded upon the proposition that in preparing and making D.C.P. No. 8 the Respondent was under the legal duty to form the opinion based upon reasonable grounds that the subject building was an item of environmental heritage.

The Respondent raised objection to the Applicant being allowed to raise in the context of the hearing of a s.97 appeal the issue of the legal "reasonableness" of the Respondent's decision to make D.C.P. No. 8, pointing out that such an issue was more appropriately raised in proceedings by way of judicial review. In my opinion it is open to the Applicant in the present proceedings to put in issue the validity of D.C.P. No. 8 basing its attack on familiar grounds in administrative law. Of course the Applicant bears the onus of proving invalidity and in the present case it essays the difficult task of proving a negative (the Respondent's decision was unreasonable at law) where it relies upon the official file maintained by the Respondent as its sole mode of proof.

If the premise undergirding the Applicant's submission is correct it may be accepted that it is open to the Applicant to legally challenge the Respondent's decision upon established grounds such as were discussed by Gibbs C.J. in the following passage in Foley v. Padley (1984) 154 CLR 349 at p.352/354:-

"When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition. However, that does not mean that an exercise of the power is immune from challenge, even if the opinion, which was a condition of that exercise, was made in good faith in the sense that it was honestly held. In my respectful opinion the law was correctly stated by Latham CJ in R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. Latham CJ said:-

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."

His Honour went on to say:-

"It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."

A similar view has been expressed in New Zealand where it has been said that when the test is subjective, as for example when the legislation confers power on a body "when it is satisfied" of something, if the body in whom the power is reposed was in fact satisfied, its decision cannot be attacked unless it "could not on any reasonable basis have reached that decision": Edwards v. Onehunga High School Board.

The questions whether the necessary opinion is one which no reasonable council could have formed, and whether the council has misconstrued the statute or taken extraneous matters into account, may sometimes be connected and overlap, but in the present case it is sufficient to inquire whether the activity described in s.1 by By-law No. 8 could reasonably have been regarded as likely to affect the use or enjoyment of the Mall. If that question is answered in the affirmative there is no ground on which it could be concluded in the present case the the Council has misconstrued the effect of s.11(1)(a) or has taken into consideration matters which it was improper for it to consider."

In my opinion the Applicant has not discharged the onus of proving invalidity.

The ground of challenge as I understand it to be is that there was no reasonable basis open to the Council to identify the subject building as an item of environmental heritage. A variant ground for the challenge was that the Respondent misdirected itself in law as to what is an item of environmental heritage.

The material from the Respondent's official file relied upon by the Applicant indicates that the genesis of the inclusion of the subject building in D.C.P. No. 8 was a question without notice raised by an Alderman at the Respondent's meeting held on 15th April, 1986. That question asked:-

"Could enquiries be made as to the future use of the former "Commercial Bank" (now National) building in Great North Road, Five Dock? Could a case also be prepared for its preservation as an historic building so that application can be made to the Heritage Council?"

The question was the subject of a joint report of the Respondent's Municipal Engineer/Planner and of the Respondent's Building Surveyor submitted to the Respondent's meeting held on 6th May, 1986. The report stated:-

"Enquiries have been made as requested to the National Australia Bank who are the current owners of the building, however at this time no decision has been made on its future use.

The building has not been classified as an historical place of interest within the Municipality by The National Trust of Australia (N.S.W.) nor is it included in Council's list of other unclassified properties of general historical interest.

Council might indicate whether it is of the opinion that further enquiries should be made and whether further action should be taken under the Heritage Act, 1977 in respect of the building."

The Respondent resolved as follows:-

"That action be taken under the Heritage Act 1977 for the listing of the building having regard to its architectural significance to the streetscape."

Soon thereafter the Applicant's Properties Manager wrote to the Respondent seeking advice as to the Respondent's intentions in respect of the aforesaid question without notice. The letter stated the opinion "this building has neither architectural merit nor historical significance ..........".

On 3rd June, 1986 the Respondent replied to the Applicant's letter advising that the matter raised "is under consideration in conjunction with the provisions of the Environmental Planning and Assessment Act 1979 and more particularly, the Drummoyne Local Environmental Plan 1985".

On 4th June, 1986 the Respondent wrote to the Heritage Council of N.S.W. concerning the subject building, stating inter alia:-

"Having regard to its architectural significance to the streetscape, Council resolved that in accordance with the provisions of Section 166 of the Heritage Act 1977, the building be submitted to the Heritage Council for consideration as an item of environmental heritage and worthy of conservation."

(It appears that the Heritage Council did not reply to this letter until 27th December, 1987 well after the date that D.C.P No. 8 was made and came into effect).

On 26th May, 1986 the Respondent's Development Committee resolved to prepare in accordance with Part III of the Environmental Planning and Assessment Regulation 1980 a Development Control Plan entitled "Items of Environmental Heritage". A draft development control plan (in a form not materially different from the form in which D.C.P. No. 8 was ultimately made) was publicly exhibited in accordance with the Regulation during the period 25th June, 1986 - 18th July, 1986. The subject building was included in Schedule 4.

It appears that no objections were received in respect of the draft development control plan and on 16th September, 1986 the Respondent approved of the development control plan "in the form in which they were publicly advertised": (see cl.24(1) of the aforesaid Regulation).

Public notice was given by the Respondent of its approval of D.C.P. No. 8 (see cl.24(2) of the Regulation) and advising that "it shall come into force on the day on which Drummoyne Local Environmental Plan 1985 takes effect". (It is common ground that the reference to 'Drummoyne Local Environmental Plan 1985' is a reference to the plan that ultimately came into force on 30th January, 1987 with the name or citation "Drummoyne Local Environmental Plan 1986").

The Applicant's tender of the Respondent's official file contains material upon which it relies in its challenge to the validity of D.C.P. No. 8 which came into existence after the date upon which the Respondent approved D.C.P. No. 8. That material includes the Applicant's letter dated 1st December, 1986 to the Respondent in response to advice that the subject property had been included in D.C.P. NO. 8 and the Respondent's reply dated 5th December, 1986.

In objecting to the inclusion of the subject property in D.C.P. No. 8 the Applicant's Properties Manager advised, inter alia:-

"It is noted that our premises at the above address have been listed under Schedule 4 which apparently is a register compiled by your Council as distinct from registers of the Heritage Council of N.S.W. and also the National Trust of Australia (N.S.W.). It is our belief that the property in question has insufficient historical interest or architectural merit to warrant retention."

The Respondent's reply dated 5th December, 1986 (which as I understand the Applicant's submission is said to constitute a relevant admission) stated inter alia:-

"The objection has been noted. In fact, Council has a current enquiry before the Heritage Council of N.S.W. for determination as to whether the property is in fact an item of Environmental Heritage and worthy of conservation.

In the interim, pending either a reply from the Heritage Council or a determination under a yet to be initiated thematic survey for Heritage Conservation within the Municipality, it is considered prudent the property remain within the relevant Development Control Plan by means of which, in addition to other controls, the consent of council is required prior to demolition, renovation or extension of the subject building.

When a determination is made of council's current inclusion of the property in the Development Control Plan, you will be immediately advised."

As I have stated the foregoing material does not, in my opinion, sustain the Applicant's attack on the validity of D.C.P. No. 8. The fact that the official file does not reveal the existence of any expert or professional opinion on the question whether the subject property is a building of historic, scientific cultural, social, architectural or aesthetic significance to Drummoyne, is not conclusive of the question whether such opinion existed at the relevant time or whether it was known to the Respondent's collegiate mind when the Respondent decided to prepare draft D.C.P. No. 8 and to approve D.C.P. No. 8.

More importantly whether or not such expert or professional opinion existed at the relevant time is not conclusive of the question whether the Respondent considered the subject building to be an item or environmental heritage or the question whether the subject building is an item of environmental heritage because those questions are essentially questions of fact and though one might expect that they are questions upon which there may be expert opinion one might also reasonably expect that elected local government representatives would themselves hold relevant and informed opinions especially on that vital aspect of the statutory definition (of "items of environmental heritage") that focuses attention on "........... significance to Drummoyne" - cf. Parramatta City Council v. Hale (1982) 47 LGRA 319 at pp.334 and 340 where it is recognised that responsibility in planning matters ultimately lies with the elected representatives (and not with their expert advisors) and that in discharging their responsibilities

elected representatives are entitled to rely on their own general and local knowledge. In the present case it is clear from the terms of the Respondent's resolution passed on 6th May, 1986 and the Respondent's letter dated 4th June, 1986 to the Heritage Council that the Respondent regarded the subject building as having "architectural significance to the streetscape", an expression that necessarily implies "significance to Druymmoyne".

For these reasons I do not regard the Respondent's letter to the Applicant dated 1st December, 1986 as an admission that there was no reasonable foundation for its decision to include the subject building in D.C.P. No. 8 or that the Respondent misdirected itself in law in so deciding. As I pointed out in the course of argument the Respondent's submission to the Heritage Council under s.166 of the Heritage Act 1977 involving the subject building (and the ultimate fate of that submission which was not adopted) is not conclusive of the question whether the subject property is an "item of environmental heritage" in terms of the L.E.P. because the regime of that Act is directed to the conservation of the 'environmental heritage' which is defined by reference to " significance to the State" and is to be contrasted with the definition in the L.E.P. which speaks of "significance to Drummoyne". Moreover s.166 refers not only to 'an item of the environmental heritage' but to such an item that is "worthy of conservation

in accordance with this Act". (emphasis supplied)

Moreover the Respondent's submission of the case to the Heritage Council is to be understood in the light of the fact that s.166(1) enables such a submission in respect of a building "which, in the opinion of the Council, is an item of the environmental heritage .........." and I am entitled to apply the presumption of regularity and regard the submission as being based on the Respondent holding the requisite statutory opinion.

It was presumably the Respondent's pursuit of the matter under the Heritage Act that prompted the Applicant's variant submission that the Respondent had misdirected itself in failing to consider "the significance" of the subject building "to Drummoyne". I do not infer from the action taken by the Respondent under the Heritage Act that it had misdirected itself in including the subject building in D.C.P. No. 8. On the contrary I infer from the fact that the subject building was included in Schedule 4 "Register of Drummoyne Municipality" and not in the other Schedules to D.C.P. No. 8 that the Respondent fully understood and appreciated the element of the statutory definition "of significance to Drummoyne".

Common sense suggests that items of environmental heritage having significance to the Nation and to the State are almost certain to also have significance to Drummoyne.

On the other hand it is equally clear that the converse may not hold true ie items only having 'significance to Drummoyne' may not have significance to the State and to the Nation. Once these basic (I would have thought self-evident) propositions are recognised there is no room or justification to draw any adverse inference from the Respondent's attempt to invoke the protection of the Heritage Act in respect of the subject building.

In rejecting the Applicant's attack on the validity of D.C.P. No. 8 I have been content to accept the Applicant's identification and exposition of the legal duty or function of the Respondent in respect of the making of a development control plan (such as D.C.P. No. 8) contemplated or anticipated by paragraph (b) of the definition in the L.E.P. of "items of environmental heritage".

It was for this reason that I cited the Chief Justice's judgment in Foley v. Padley which, unlike the present case, involved a by-law making power expressly predicated upon the existence in the by-law maker of a requisite statutory opinion.

For my own part I would not agree that the Respondent's function or duty in respect of the making of a development control plan contemplated or anticipated by the L.E.P. definition of 'items of environmental heritage' is "conditioned upon the existence of an opinion" (Foley at p.352). In my opinion the correct analysis of the Respondent's function in making D.C.P. No. 8 is that it was engaging in a legislative act rather than an executive act and that to adopt (with necessary adaptations) the present Chief Justice's analysis (in Queensland v. The Commonwealth (1988) 62 ALJR 143 at p.145) of regulations made under s.3(2) of the World Heritage Properties Conservation Act 1983, the function of D.C.P. No. 8 is close to that of a proclamation as D.C.P. No. 8 does not in terms create rights and obligations but brings the provisions of the L.E.P. (cll.18 to 22) into play, provided that the property to which the D.C.P. refers forms part of items of environmental heritage.

There are two important consequences of the foregoing analysis of the Respondent's function in making D.C.P. No. 8 in the present case -

(i) the same broad grounds for impugning the validity of an executive or administrative act (including in particular the bases for the Applicant's present attack) are not available to an attack on the validity of a legislative act (cf. Hale at p.346); and

(ii) the Applicant in launching its attack on the validity of D.C.P. No. 8, not having put in issue the question of fact whether the subject property is an item of environmental heritage the Court is not called upon to determine that question.

Accordingly I reject the Applicant's argument.

Submission (iii) In submitting that D.C.P. No. 8 is ultra vires the Environmental Planning and Assessment Act the Applicant draws particular attention to s.72(1) which provides:-

"72 (1) Where a council considers it necessary or desirable to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which that plan or draft plan, as the case may be, applies, it may prepare or cause to be prepared a development control plan."

Relying on what was said by Samuels JA concerning the word 'detail' in Sydney City Council v. Ilenace Pty. Ltd. (1984) 54 LGRA 217 at p.223 (where His Honour in the context of s.102 of the Environmental Planning and Assessment Act adopted the Shorter Oxford English Dictionary meaning "an item, particular; minute or subordinate portion of any whole" a meaning I do not regard as appropriate in the present context) the Applicant submits that a development control plan can "provide more particulars to what is already provided for in a local environmental plan" but cannot be used "to add to or alter" the local environmental plan. It submitted that this is in effect what D.C.P. No. 8 had impermissibly attempted to do, namely to amend the local environmental plan since s.74 of the Environmental Planning and Assessment Act dealt specifically with the question of amendments to environmental planning instruments. The Applicant submitted that the Court's determination should accommodate the fact that the requirements fo

r public exhibition and opportunity for public participation in the process leading to the approval of a development control plan under Part III of the Regulation were not as rigorous as the counterpart procedures under Part III of the Environmental Planning and Assessment Act for the making of a local environmental plan.

The Respondent submitted that D.C.P. No. 8 was intra vires s.72 in as much as it had supplemented (but not amended or added to) the L.E.P. and in so doing had obeyed the "parent" enactment ie the L.E.P.

Moreover the Respondent submitted that the Applicant's submission was ultimately an attack on the validity of cl.5 of the L.E.P. (providing the definition of 'items of environmental heritage') and that such an attack was not available to the Respondent by virtue of the operation of s.35 of the Environmental Planning and Assessment Act which provides:-

"35 The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette."

(It is common ground that the present proceedings were commenced well beyond the 3 month limitation period).

The Applicant submitted that its attack on the validity of D.C.P. No. 8 was not an attack on the validity of the L.E.P. and hence was not precluded by s.35.

Although s.72(1) expressly predicates or conditions the power of a council to prepare a development control plan on the council's opinion that it is "necessary or desirable to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan" it needs to be appreciated that the legal scope and limits of the content of a development control plan are principally demarcated by s.72(2) and (3) which are in the following terms:-

"72 (2) The format, structure, subject-matter and procedures for the preparation, public exhibition, approval, amendment and repeal of a development control plan shall be as prescribed.

(3) A development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies."

Clause 19 of the Environmental Planning and Assessment Regulation 1980 deals with the question of "form" of a development control plan. Clause 20 of the Regulation deals with the question of "subject matter". It provides:-

"A development control plan may make provision for or with respect to any matter for or with respect to which a local environmental plan may make provision."

The plenary powers available to support provisions of a local environmental plan are set forth in the Act and particularly in ss.24 and 26. There was no submission in the present case (nor could such a submission be sustained) that those powers would not authorise or support provisions for the pretection of the environment (see s.26(a)) such as are made by cll.18 - 22 of the L.E.P.

The undoubted breadth of subject matter or content of a development control plan prescribed by the Regulation made under s.72(2) is however controlled by the requirement of s.72(3) that a development control plan "shall generally conform to the provisions of the local environmental plan". I discussed the requirement of s.72(3) in Guideline Drafting and Design v. Marrickville Municipal Council (unreported 17th March, 1988) where I held a provision of a development control plan to be ultra vires s.72 in as much as it did not "generally conform" to the provisions of the relevant local environmental plan. In that case the relevant provision of the Development Control Plan absolutely limited the location of refreshment rooms to the ground floor of buildings whereas the relevant local environmental plan permitted (subject to the obtaining of development consent) the establishment of refreshment rooms without restriction in buildings located within the General Business Zone.

I dealt with the requirement of s.72(3) in the following passages at pp.6 and 7:-

"Where the provisions of the local environmental plan allow, with development consent, refreshment rooms to be developed in buildings without spatial or locational limitation (as in the present case) a development control plan that absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as "generally conforming" to the provisions of that local plan. The requirement to "generally conform" confers a deliberate degree of lattitude from absolute conformity. I take the meaning of "generally" to be "for the most part, extensively" or "in a general sense or way opposed to specially" (The Shorter Oxford Dictionary). The concept of "general conformity" is not foreign to the town planning context (eg s.11(9) of the English Town and Country Planning Act 1971 requires a local plan to "conform generally to the structure plan"). In the present context the nature of the content of the development control plan designed to "provide more det

ails than are contained in a local environmental plan" (s.72(1)) suggests that the deliberate degree of lattitude conferred is intended to accommodate the phenomenon of "detailed or particular planning" as opposed to "general planning". So understood I do not think it can be said of cl.6.1 of the Development Control Plan that by absolutely forbidding the establishment of refreshment rooms other than on the ground floors of buildings that it generally conforms to the local plan that imposes no spatial or locational restrictions on the establishment of refreshment rooms in buildings situate in Business Zones which generally contain more than 1 floor. The prohibition contained in the Development Control Plan exceeds the limits of providing details for refreshment room development generally permissible in the Business Zones under the local environmental plan.

A similar question arose in Willoughby Municipal Council v. Manchil Pty. Ltd. (1974) 29 LGRA 303 where Samuels J. had to consider whether the Chatswood Centre Study was "a detailed plan or design" within cl.32(e) of the Willoughby Planning Scheme Ordinance. His Honour at p.309 stated:-

"It seems to me that the detailed plan or design contemplated by cl.32(e) is intended to be one which is controlled by and illustrates the existing planning scheme. A plan which illustrated graphically a development which was contrary to the provisions of the scheme would not in my opinion fall within the terms of cl.32(e). The observations of the Judicial Committee in Boland v. Canadian National Railway Company (1927) AC 198 at p.210) are here in point."

In that case there was no definition of a "detailed plan or design" and there was no statutory limitation on the content of such a plan or design. His Honour's qualification or limitation (which I have underlined in the passage cited) concerning the relationship between the detailed plan or design on the one hand and the planning scheme on the other hand, is in my respectful opinion apposite to the interpretation of the statutory limitation on the content of a development control plan imposed by the words "generally conform" in s.72(3) of the Environmental Planning and Assessment Act.

In the present case the provisions of cl.6.1 of the Development Control Plan are neither controlled by nor illustrative of the relevant provisions of the Marrickville Planning Scheme Ordinance concerning the establishment of refreshment rooms in the General Business Zone."

If the effect of s.72(3) in that case be considered arguable the effect in the present case is clear-cut.

In my opinon D.C.P. No. 8 does satisfy the requirement of s.72(3) that it "generally conform" to the provisions of the L.E.P. because in identifying items of environmental heritage D.C.P. No. 8 conformed precisely to the requirements and expectations of the L.E.P and was controlled by it. Those requirements and expectations were that other items of environmental heritage (additional to those described in Schedule 1 of the L.E.P.) be identified by a development control plan. D.C.P. No. 8 precisely satisfied that requirement and fulfilled that expectation. Thus D.C.P. No. 8 involves no contrariety, inconsistency or repugnance in relation to the L.E.P.

The fact of that conformity completely negates the Applicant's argument that D.C.P. No. 8 is ultra vires because it in effect attempts to amend the L.E.P. (by extending the scope or ambit of cll.18 - 22 to other items of environmental heritage which are not directly specified in the L.E.P.). As I have stated the short and conclusive answer to this submission is that this impugned effect of D.C.P. No. 8 is precisely what the L.E.P. required or expected (and hence authorised) of the development control plan.

Accordingly I reject the Applicant's submission that D.C.P. No. 8 is ultra vires the Environmental Planning and Assessment Act.

This conclusion makes it unnecessary for me to consider the Respondent's argument that s.35 of the Environmental Planning and Assessment Act precludes the Applicant's challenge to the validity of D.C.P. No. 8. Since the matter raises an important question of principle and was not the subject of extensive argument I think the question is best reserved to another case where it is necessary to decide the question directly.

Likewise it is not now necessary to express any conclusion on the question raised in the course of argument whether D.C.P. No. 8 would be sustainable otherwise than as a development control plan operating under s.72 of the Environmental Planning and Assessment Act.

The result of the failure of each of the Applicant's separate attacks on the validity of D.C.P. No. 8 is that for the purpose of determining the present appeal the subject building is to be regarded as an item of environmental heritage to which the conservation provisions of cll.18, 20 and 21 of the L.E.P. apply.

THE PLANNING MERITS

The subject building is described in the following manner by Professor Toon in his written report (Exhibit D p.3):-

"The subject premises, 94 Great North Road, Five Dock, is a two-storey stucco-fronted classic-revival styled building dating from about 1920 and built for the Commercial Banking Company of Sydney. The rear of the building is suburban brick and tile style and is probably an addition dating from about 1950. The front is symmetrical well-mannered and polite in architectural style and has interesting pilaster, cornice and entrance portico detailing. It is distinguishable as a bank building but is not distinguished as are some other bank buildings."

The following more detailed description is given by Mr. Vincent Murphy, a Town Planning Consultant (Exhibit 10):-

"The subject building appears to have been built in 1924. There was considerable subdivision activity in the area in the 1920's. This would have greatly boosted commercial development in the business centre. Many of the centre's older buildings date from that period.

The style of the building is best described as Georgian or Classical Revival. It features a symmetrical design with masonry as the primary element. Classical features include the high plinth, the heavy entablature with dentil ornament, and the central curved pediment on the parapet above. The tall pilasters are also derived from Classical forms.

The panels between pilasters were probably of exposed brick originally, similar to those on the facade of the nearby Five Dock Hotel. If this were so the subsequent rendering would amount to a loss of architectural integrity. This however would not be serious for a commercial building and quite in keeping with the period. Except for the front door and various minor details the facade of the building survives otherwise unaltered. The remainder of the building has been altered and added to many times. Even in its original state however this part of the building would have been of only limited architectural interest. Its style is domestic rather than commercial."

I accept these descriptions of the subject building.

Expert evidence was given by Mr. Murphy and Mr. Stephen Harris (Lecturer in Town Planning at the University of N.S.W.) on behalf of the Respondent and by Professor Toon on behalf of the Applicant. The former opposed the development proposal urging the retention of the subject building (or more precisely its facade) the latter supported the development proposal.

It is in my opinion, a matter of some significance that when Professor Toon prepared his written report he was not aware that the Respondent had earlier commissioned a local heritage study for the Municipality of Drummoyne. Mr. Murphy was the consultant in charge of that study, his firm having been commissioned by the Respondent in September 1987. The study is currently being undertaken in 3 stages, stage 1 alone having been completed. Stage 1 comprises a thematic history prepared by an historian in January 1988 and a comprehensive street survey undertaken by Mr. Murphy in March and April 1988. The purpose of the latter is "to identify all buildings of potential historic and architectural interest as far as visual inspection could tell" (p.3 of Stage One Progress Report on the Drummoyne Heritage Study received by the Respondent from its consultant on 27th May, 1988). The street survey produced a list of some 260 buildings of some heritage significance including the subject building.

The aforesaid Progress Report notes that "the list will be narrowed down in Stage Two to the limit set in our submission (ie 120)" (p.6).

The Report further states (p.6):-

"Nor should it be assumed that all inventory items will merit protection by way of local environmental plan or conservation order. Recommendations on these aspects will be made in the final report. At this stage it is envisaged that no more than 100 items would need to be specially protected."

The significance of the existence of the Drummoyne Heritage Study (and its results so far achieved) means that Professor Toon's criticism of the absence of systematic heritage study and of the apparent arbitrariness of considering the subject building in isolation from other heritage items can no longer be sustained. This result, inevitably in my opinion, weakens his ultimate opinion that the subject building "is not significant to Drummoyne on any of the grounds identified in the L.E.P.".

On the other hand the ultimate opinions expressed by Mr. Murphy and Mr. Harris not only recognise but are buttressed by, the existence and content of the Drummoyne Heritage Study.

To the extent that the case requires the resolution of conflicts in the relevant expert testimony I prefer the opinions of Mr. Murphy and Mr. Harris that the subject building (or more precisely the building facade) does have heritage significance to Drummoyne and warrants conservation.

Both Mr. Murphy and Mr. Harris expressed the opinion that there are alternative means (other than total demolition of the subject property) to achieve the Applicant's stated objective of securing on the appeal site modern day bank premises, namely by effecting internal alterations and possible side extensions (set back from the alignment of the facade) while retaining the facade of this building.

The opinions of Mr. Murphy and Mr. Harris that I have accepted gain some support from the views expressed by the Heritage Council and the National Trust in their respective written responses to the Respondent's call for assistance in its defence of the appeal even though neither body appeared to give evidence. (Mr. Harris who has formal links with the National Trust was expressing his own professional opinion).

I do not doubt the genuinesness of the views expressed by Mr. Struck, the Applicant's Properties Manager concerning the Applicant's perception that retention of the building facade is disadvantageous to the Applicant's marketing strategies prompting its redevelopment proposal. However the evidence called by the Applicant falls well short of satisfying me that the subject building is incapable of "adaptive re-use". Moreover the private proprietary interests of the Applicant need to be balanced against the relevant public interests in this case and particularly those expressed in Cl.2(e) of the L.E.P.:-

"This plan aims -

(e) to conserve and enhance the environmental heritage of the Municipality of Drummoyne."

It may be expected that when the Drummoyne Heritage Study is completed the Respondent's task of 'assessing the significance' (see cl.21) of identified items of environmental heritage will be facilitated. At the present stage of the Study's progress the subject building has been identified as an important item and this has obvious bearing and influence on the exercise in the present case of the discretionary judgment called for by cll.18 and 21 of the L.E.P.

I am of the clear opinion that that judgment in the circumstances of the present case and as at the present time must be exercised in a manner that fully recognises the heritage significance of the subject building and seeks to conserve that significance.

Accordingly I make the following orders:-

1. The appeal be dismissed.

2. No order as to costs.

3. Exhibits to be returned.