Pettersson v ACT Heritage Council & Commissioner for Social Housing (Administrative Review)

[2010] ACAT 28

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PETTERSSON v ACT HERITAGE COUNCIL & COMMISSIONER FOR SOCIAL HOUSING (Administrative Review) [2010] ACAT 28

AT 76 of 2009

Catchwords: ADMINISTRATIVE REVIEW – Review brought under ACT Civil and Administrative Tribunal Act 2009 (ACT) s 9, as authorised by Heritage Act 2004 (ACT) ss 114, 111 and Schedule 1, Item 1

HERITAGE – Decision not to provisionally register a place under s 32 – whether there is a reviewable decision - requirements for provisional registration – meaning of “satisfied”, “on reasonable grounds”, “may have” and “heritage significance”.- interpretation of criteria 10(d) and 10(h) – whether place is highly valued by the community or a cultural group – whether the Corroboree Park community constitutes “the community” or “a cultural group” – whether place has special or strong associations with a “development” or “cultural phase” in local or national history.

Legislation:ACT Civil and Administrative Tribunal Act 2009 (ACT),

Heritage Act 2004 (ACT) ss 10, 32, 111,114

Land (Planning and Environment) Act 1991 (ACT), s 56, Schedule 2, Items 1(d) and 1(g) (Repealed)

Heritage Regulation 2006

Cases:Australian Garden History Society and ACT Heritage Council [1997] ACTAAT 198

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Cummings v Lewis & Ors (1993) ATPR (Digest) 46
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) 1 ALD 167;
Re Woodcock [1957] NZLR 960
Salvation Army (NSW) Property Trust and ACT Heritage Council [1998] ACTAAT 28 at [24];
 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 219
Wagner & Fuary and ACT Heritage Council [2003] ACTAAT 54
 Woden Valley Community Council & Royal Australian Institute of Architects and Commissioner for Land and Planning [2003] ACTAAT 19

Tribunal:           Mr A. O’Neil, Senior Member

Dr D. McMichael, Senior Member

Date of Orders:  4 May 2010
Date of Reasons for Decision:         4 May 2010

AUSTRALIAN CAPITAL TERRITORY   )

CIVIL & ADMINISTRATIVE TRIBUNAL                  )             AT 76 of 2009

BETWEEN:  SUSAN PETTERSSON

Applicant

AND:                ACT HERITAGE COUNCIL                      Respondent

AND:       COMMISSIONER FOR SOCIAL  HOUSING
Party Joined

Tribunal:Mr Allan O’Neil  Senior Member

Dr Don McMichael                Senior Member

Date:  4 May 2010

ORDER

That the Heritage Council’s decision of 6 August 2009 (as amended by remade decision of 7 September 2009) is confirmed.

……………………………….
Mr Allan O’Neil
Senior Member

REASONS FOR DECISION

INTRODUCTION

1.          

This is an application made on 7 September 2009 by Ms Susan Pettersson (“the applicant”) under s 9 of the ACT Civil and Administrative Tribunal Act 2009 (ACT) (“the ACAT Act”) for review of a decision by the ACT Heritage Council (“the respondent”) not to provisionally register a wooden cottage at 27 Campbell Street, Ainslie (Block 11, Section 2, Ainslie) on the ACT Heritage Register under s 32 of the Heritage Act 2004 (ACT) (“the Heritage Act”).  The notification of this decision on 6 August 2009 (NI2009-374) erroneously referred to Block 12 in its attached Statement of Reasons, and was subsequently revoked and remade (NI2009-434) on 7 September 2009 with reference to Block 11. 

2.          

The nomination of the place was made on 12 July 2009 by Ms Pettersson, who resides at 25 Campbell Street, when she learned that a Development Application from the ACT Department of Disability, Housing and Community Services on behalf of the Commissioner for Social Housing (“the party joined”) proposing the demolition of the cottage and its replacement with two new brick residences, had been approved by the ACT Planning and Land Authority. [1] 

[1] It emerged during the hearing that the Development Application had been withdrawn and it was now proposed to retain and refurbish the existing cottage and to build a second house on the block, but this information played no part in the Tribunal’s decision making.

3.          

The cottage is simple weatherboard, iron roofed structure of a kind not uncommon in the vicinity.  It originally had two brick chimneys but one has since been reduced and its base hidden under a reconstructed roof section, while a single detached garage in the back yard has been demolished. A front verandah as been enclosed.

4.          The nomination was accepted by the Respondent and the ACT Heritage Unit subjected it to “rapid assessment” because the development approval was being separately appealed to the ACT Civil and Administrative Tribunal and it was considered that a determination of any heritage significance of the property could be important in that appeal. However, in the light of that assessment, the Council concluded that the place was of insufficient heritage value to warrant provisional registration.

5.          

The matter was heard by the Tribunal on 15 April 2010. The respondent was represented by Mr Richard Arthur of Counsel, while the applicant was represented by her husband, Mr Ross Pettersson. The party joined took no part in the hearing, other than to be represented by Ms Lisa Tomlins of the ACT Government Solicitors Office. The Tribunal had before it the “reasons statement” required by s 22B of the ACAT Act (“the T-Docs”) as well as Statements of Facts and Contentions from the applicant and the respondent. It also inspected the site in the presence of the parties and their advisers.

6.          

There were two main issues in the case - whether the Tribunal had jurisdiction to hear the matter because of an error in the respondent’s decision making procedure; and whether the property met the test - that the respondent was satisfied on reasonable grounds that it may have heritage significance - required by s 32(3) of the Heritage Act. They are dealt with sequentially in the following paragraphs.

JURISDICTION OF THE TRIBUNAL

7.          

At an earlier stage in these proceedings, the question arose as to whether the applicant had sought review of the decision within the 28-day time limit prescribed by s 10 of the ACAT Act. That matter was resolved on 16 March 2010 when, following consideration of submissions, Presidential Member Spender ruled that there were reasonable grounds for extending the time for making the application for review and extended that time to 7 September 2009.

8.          

Subsequently, the applicant drew attention to the fact that no formal meeting of the respondent in accordance with the provisions of the Heritage Regulation 2006 (SL2006-46) had been held prior to the decision under review being made and that instead the respondent had relied on its power under s 9(4) of that regulation to agree to a resolution by electronic communication, even if not passed at a Council meeting.  However, she observed that only six (6) of the eight (8) appointed members of the respondent had agreed to the resolution, whereas s 9(4) required all appointed members to agree to it for the resolution to be valid.  Counsel for the respondent, Mr Arthur, conceded that the resolution had not been validly made.

9.          

As a consequence, the issue arose as to whether there was a reviewable decision for the Tribunal to review. Mr Arthur submitted that the Tribunal was able to review the decision on its merits as if it had been validly made, referring to the relevant sections of the authoritative text by Flick,[2] and citing in particular the Brian Lawlor case [3]  in which the Federal Court had held that a merits review tribunal has power to review a decision provided that there was a decision in fact and that the decision purported to have been made in exercise of powers conferred by enactment, whether or not  as a matter of law it was validly made.

[2] Geoffrey A Flick, Federal Administrative Law (2^nd Ed, 2001)[AAT25.20, AAT25.70].

[3] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) 1 ALD 167; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307; 2 ALD 1.

10.       

The principle has been clearly stated more recently by von Doussa J in the Alvaro case [4] where he wrote

In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made.  The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review.  It mattered not whether the ground of complaint made about the preceding decision was merely that it was wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.  The purpose of the review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected.

[4] Secretary, Department of Social Security v Alvaro (1994) 50 FCR 219 [16]-[17].

11.       

Although these cases relate to decisions of the Commonwealth AAT, they are in all respects applicable to the review of decisions by this Tribunal.  Consequently, we determine that the Tribunal has jurisdiction to hear the matter.

REVIEW OF THE DECISION OF THE RESPONDENT

12. The issue for consideration in relation to the merits of the respondent’s decision is whether the place failed to meet the test imposed by s 32(3) of the Heritage Act. That section reads

The Council may provisionally register a place or object only if satisfied, on reasonable grounds, that the place or object may have heritage significance.

13.       

The applicant tendered extensive documentation in support of her contention that the cottage on its block did have heritage significance, in particular as the only surviving remnant of what was once the terminus of the bus line running between Kingston and Ainslie, which was of vital importance to the lives of the people in pre-war Canberra and to the development of the fledgling national capital. She contended that bus services were a central element of the Garden City concept on which early Canberra had been planned.  She noted that it was immediately adjacent to the Corroboree Park Heritage Precinct, which is on the ACT Heritage Register and contended that it should have been included as part that precinct.

14.        She submitted evidence which, when supported by the respondent’s statement of reasons, demonstrated the following facts about the property:

·     There was a bus sub-depot which operated out of buildings across the road (Campbell Street) from Block 11, from 1929 to 1941;

·     In 1941the sub-depot operation was moved to another part of Ainslie. The buildings remained and were used as a public housing repair works base until the 1960s (when presumably they were replaced with the current residential housing);

·     There was a need for a caretaker for the sub-depot.  There being no available accommodation, a house was built for that purpose on Block 11. A bus driver, Mr Tormey, was given the caretaker duties, for the performance for which he received a reduction in the rent of the house;

·     Mr Tormey moved out of the house to continue his caretaker role when the sub-depot operation was moved in 1941;

·     The new tenant of the house, Mr Canning, was also a bus driver. His wife was later a bus conductress during the war years.  The Canning family lived in the house for over 60 years except for a short period when it was sublet; 

·     

The house is of a common type.

15.       

Mrs Pettersson contended that the Corroboree Park local community had kept and valued this history through oral history, while Mr Tormey’s memories had been recorded as part of the National Library of Australia’s Local Oral History project.  Mr Pettersson drew attention to the fact that a considerable number of former bus employees or their descendants still lived in the vicinity of the place and that there was an organisation of former employees of the bus service (The Retired ACT Transport Employees Club Inc) that actively promoted actions to commemorate the former service through oral histories and collections.

16.       

Mr Pettersson submitted that because of these facts, the place was of social significance to the Corroboree Park local community and therefore met the requirements for provisional listing, because it not only may, but did have heritage significance.

17.       

Mr Arthur submitted that if the Tribunal, standing in the shoes of the decision-maker, were to set aside the decision it would need to meet the three requirements of s 32(3), that is, (i) it had to be satisfied, (ii) on reasonable grounds, (iii) that the place may have heritage significance.

18.       

In relation to being satisfied, Mr Arthur submitted that no particular level of proof was required, but there should be a state of “actual persuasion” or of having reached a “clear conclusion” about the matter, relying on the definition of “satisfied” in Words and Phrases Legally Defined[5], in particular as expressed by Finlay ACJ in Re Woodcock[6] in the New Zealand Court of Appeal.

[5] David Hay (Gen. Ed) Words and Phrases Legally Defined (4^th Ed, 2009).

[6] Re Woodcock [1957] NZLR 960 at 963-964.

19.        

In relation to “on reasonable grounds” Mr Arthur submitted that this did not depend on the fact that a person making an assertion as to some fact or situation did so on the basis of a genuine belief in the accuracy of the statement.  Instead, he cited the joint judgement of Sheppard and Neave JJ in Cummings v Lewis and ors, [7] where they wrote “evidence of reasonable grounds might be established by evidence other than that of the persons who … made particular representations…” and that “it is again the overall circumstances of the case which will provide more reliable guidance than would oral evidence on the part of interested parties”.

[7] Cummings v Lewis & Ors (1993) ATPR (Digest) 46-103 at 53,447.

20.        

As to whether or not the place may have heritage significance, Mr Arthur observed that no doubt the word “may” refers to a possibility that a place proposed for provisional registration might be found to have heritage significance after further investigation.  However he submitted that it had to be more than a “bare possibility" - that there had to be a reason to think that it could be shown by further inquiry.  In this case, he submitted that the facts gathered by both the applicant and the respondent were sufficient to enable the Tribunal to conclude that no such possibility existed

21.        

Mr Gerhard Zatschler, the Manager of the ACT Heritage Unit, gave evidence about a briefing note that he had prepared for the Minister for the Arts and Heritage on 20 July 2009, in which he had stated that

On first glance of the nomination it appears unlikely that the argument for ‘strong and special associations’ could be easily sustained… Further research may lead to other conclusions, however, at present it appears unlikely that the nomination will reach the threshold to warrant heritage listing

.

22.        

When question about what was meant by the second sentence cited above, Mr Zatschler explained that when he had prepared the note, the Heritage Unit had not completed its research into the property and in order not to rule anything out, he had asked his staff to make further inquiries to be sure that all relevant facts were considered.  By the time it was submitted to the Council for consideration, he was satisfied that the property could not be regarded as having heritage significance.

23.        

Mr Arthur then addressed the Criteria set out in s 10 of the Heritage Act, one or more of which are required to be satisfied for a place to warrant heritage listing. The applicant had sought listing on the basis that it satisfied criterion (h) but it had also been suggested that it might satisfy criterion (d), so he made submissions about how both of these should be interpreted.

24.        

Criterion 10(h) reads

it has strong or special associations with a person, group, event, development or cultural phase in local or national history

and Mr Arthur noted that when the Heritage Act was passed in 2004, this criterion differed slightly from that in the earlier heritage provisions of the Land (Planning and Environment) Act 1991, in that the words “which played a significant part” had been removed from before “in local or national history”. [8]

[8] Land (Planning and Environment ) Act 1991 s 56, Schedule 2, item 1(g)

25.        

Mr Arthur acknowledged that the omission of these words could be interpreted as setting a lower threshold for the criterion, but in his submission, no such meaning should be read into this change. There was nothing extrinsic to the Act to indicate what was the intent of the change, but he contended that an application which included persons etc who are not historically significant would be so extensive as to be unworkable.  The requirement for the person, group, event, development or cultural phase to be “in local or national history” simply recognised that “history” is a record of what is significant in the past. He suggested that the commonly used phrase “to go down in history:” implied that history was about significant things or events, not just interesting things.

26.        

As to the meaning of “strong or special associations”, Mr Arthur contended that the relationship between the place being considered and the person etc had to be one that was more than ordinary. He referred to several decisions of the former Administrative Appeals Tribunal [9] which had addressed the formerly worded criterion, from which it could be concluded that

[9] Australian Garden History Society and ACT Heritage Council [1997] ACTAAT 198 at [31]; Salvation Army (NSW) Property Trust and ACT Heritage Council [1998] ACTAAT 28 at [24]; Wagner & Fuary and ACT Heritage Council [2003[ ACTAAT 54 at [123-130[; and Woden Valley Community Council & Royal Australian Institute of Architects and Commissioner for Land and Planning [2003] ACTAAT 19 at [p36].

a)        A significant part played by the person, group etc is essential;

b)Contemporary prominence is not sufficient is there is no enduring legacy;

c)        Strength of association can weaken through time; and

d)Just to be out of the ordinary is not enough, something extraordinary is required to establish a strong or special association.

27.        

In his submission, the association of Block 11 and its house is with Mr Tormey and Mr Canning, in the first case for 7 years and in the latter for 60 years, but there was nothing special in that association and neither person played any significant role in history.  While a relevant group would consist of Mr Tormey, Mr and Mrs Canning, or perhaps bus drivers and bus personnel in general, there was no great association with them as individuals and none at all with bus drivers and personnel in general.

28.        Mr Arthur contended that while the development of bus services in early Canberra was of general interest, it did not appear to have been done in such a way as to assume historical significance.   He submitted that even if it was, the association of the house with that early development was limited to the time of the caretakership of Mr Tormey, but since the bus depot and Mr Tormey moved away, there was nothing to connect the house with those years. The residency of Mr Canning, who happened to be a bus driver, was not a continuation of the original association and even if it was, it is now gone.  In his submission, there are no, and never have been any, physical reminders of the association.

29.        Mr Arthur then addressed Criterion 10(d) which reads:

it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations

and asked, was it highly valued by “the community” or a “cultural group” for and of those associations?

30.        

He contended that the Corroboree Park local community was not equivalent to “the community” which in his submission must refer to the broad community rather than a small section of it.   While he conceded that there is a certain degree of interest in the place, he questioned whether it could be said to be “highly valued” which implies preserving something at a cost. The only group that could be identified as relevant was the Corroboree Park local community but he contended that there was no “special” association with that community. For these reasons, he submitted that criterion 10(d) was not met.

In general, he submitted that the evidence did not show that there was any heritage significance to the place, nor was there anything to indicate that further research might lead to heritage values being discovered.  Consequently the Tribunal should confirm the respondent’s decision.

CONSIDERATION OF THE ISSUES

31.        

The Tribunal, having determined that it has jurisdiction to hear the matter, has carefully considered the evidence and the submissions of the parties.  As this is the first case to come before this Tribunal or its predecessor that deals with the issue of provisional registration, the correct interpretation of the statutory provisions is of some importance.

32.        

In the first instance, we accept the general analysis by Mr Arthur of the requirements for provisional registration under s 32(3) of the Heritage Act, set out in paras 17 to 20 above. The central issue before us is whether we can be satisfied on reasonable grounds that the place may have heritage significance. If we were to be so satisfied, we would have to set aside the respondent’s decision and substitute our own decision or remit it to the respondent for reconsideration. If not, we would have to confirm it.

33.        

Words like “the community” and “a cultural group” lend themselves to a variety of interpretations.  However, we must agree with Counsel for the respondent that should not be a read too broadly. Similarly, “strong or special associations” needs to read quite narrowly, else the range of places that would be found to have heritage significance would become unmanageable.

34.        

In this particular case, we do not consider what has been called “the Corroboree Park local community” to be a cultural group within the meaning of s 10(h) of the Heritage Act. It is appears to be no more than a group of people living in or in the vicinity of Corroboree Park and as far as we are aware is not constituted in any way. We were not informed of the size of its membership nor of its activities.

35.         

A more likely group to constitute such a group would be the Retired ACT Transport Employees Club Inc, which we were informed has sought and obtained grants from the Heritage Council in support of its activities, especially for the recording of oral histories by former employees and the care of its collections.  However, that group had not expressed any interest in this matter, neither by joining as a party nor by the giving of evidence, so we are forced to conclude that the place does not have “strong or special associations’ with that organisation.

36.        

Even if “the Corroboree Park local community” was to be accepted as a cultural group, we are not satisfied on reasonable grounds that the place has a strong or special association with them.  While we accept that some people in the Corroboree Park area are aware that the house in question was once the residence of the caretaker of the bus sub-depot, we doubt that (other than the applicant and perhaps former bus employees living nearby) more than a few would feel a strong or special association with it.

37.        

A second issue is whether there is a strong or special association with a development or cultural phase in local or national history.  The applicant has contended that the bus service and this route was an important element in the social development of early Canberra and we do not disagree with that.  However, whether this particular house and place can be said to have a strong or special association with that bus service or route is the question. 

38.        

The evidence shows that the house was built specifically for the purpose of housing a caretaker to oversee the bus depot in order to protect Commonwealth property located there. However, it served this function for only 7 years and when the bus depot was relocated to another site, the caretaker function ceased and it became just another Government-owned house for rent, albeit in this case to another bus driver.  We are not satisfied on reasonable grounds that the place is of heritage significance because of this distant connection with the bus service.

39.        

With regard to criterion 10(d), the issue is whether the place is highly valued by the community or a cultural group for reasons of strong or special…”social associations”. For the same reasons as outlined above, we do not consider that the Corroboree Park local community is equivalent to “the community” nor can it be legitimately described as a “cultural group”.  As stated in para 35 above, the Retired ACT Transport  Employees Club Inc could be regarded as a cultural group, but evidently that group feels no strong of special social association with the place. There are certainly no strong or special religious, spiritual, cultural, or educational associations with any group and at best it could be said that there was a social association with the early Ainslie community, but that association no longer exists in our view.

40.        

We received no evidence to suggest that further research would reveal new information that would give the cottage or the place heritage significance.

41.        In the light of these considerations, we cannot be satisfied on reasonable grounds that the place has or may have heritage significance.

DECISION

The Tribunal orders that the Heritage Council’s decision of 6 August 2009 (as amended by remade decision of 7 September 2009) is confirmed.

…………………………………..

Mr Allan O’Neil

Senior Member

PUBLICATION  DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AT 09/76

APPLICANT:                MS SUSAN PETTERSSON
RESPONDENT:            ACT HERITAGE COUNCIL
PARTY JOINED:          COMMISSIONER FOR SOCIAL HOUSING

COUNSEL APPEARING: APPLICANT:      NONE

RESPONDENT:   MR. R ARTHUR
  PARTY JOINED: NONE

SOLICITORS:                   APPLICANT:       NONE

RESPONDENT:   MR ANDREW FREER

PARTY JOINED: MS L TOMLINS

OTHER:  APPLICANT:       MR ROSS PETTERSSON
  RESPONDENT:   
  PARTY JOINED:

TRIBUNAL MEMBER/S:     MR ALLAN O’NEIL, SENIOR MEMBER

DR DON MCMICHAEL, SENIOR MEMBER

DATE/S OF HEARING:       15 April, 2010               PLACE: CANBERRA

DATE/S OF DECISION:       4 May 2010                   PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: