Rajendran v The Heritage Council
[2015] VSC 732
•17 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2015 01474
| MARIA JOANNE RAJENDRAN | Plaintiff |
| v | |
| HERITAGE COUNCIL THE EXECUTIVE DIRECTOR EMPLOYED UNDER PART 2 OF THE HERITAGE ACT 1995 (VIC) | First Defendant Second Defendant |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 August 2015 |
DATE OF JUDGMENT: | 17 December 2015 |
CASE MAY BE CITED AS: | Rajendran v The Heritage Council |
MEDIUM NEUTRAL CITATION: | [2015] VSC 732 |
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ADMINISTRATIVE LAW — Judicial review — Property registered on Victorian Heritage Register — Circumstances of inclusion — Conservation Management Plan — Application for order that property be removed from Register — Executive Director Heritage Council — Whether failure to perform a duty — Historic Buildings Act 1981 ss 17, 18, 26; Heritage Act 1995 ss 18, 19, 54, 67, 73, 160, 161.
DECLARATIONS — Obligations and liabilities of owner of place on Victorian Heritage Register for maintenance of house and condition of house — Application for declarations as to owner’s responsibilities and liabilities — Whether declarations hypothetical.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Porter | T J Mulvany & Co |
| For the Second Defendant | Mr J Pizer QC and Ms E Porter | Victorian Government Solicitor |
HIS HONOUR:
The plaintiff, Maria Joanne Rajendran, seeks remedies by way of judicial review against the defendants. The first defendant, the Heritage Council,[1] is established under s 6 the Heritage Act 1995 and the second defendant, the Executive Director, is employed under Part 2 of that Act.
[1]The first defendant, the Heritage Council, made no appearance in this proceeding however it indicated that it would abide the orders of the court save as to costs.
Mrs Rajendran owns a property at 664–666 Riversdale Road, Camberwell (‘the property’). The house on the property (‘the house’) was designed by the noted architect, Robin Boyd. Mrs Rajendran and her late husband purchased it in 1972.
On 2 October 1991, the property was added to the Historic Buildings Register maintained under the Historic Buildings Act 1981 (‘the 1981 Act’). Since the enactment of the Heritage Act 1995 (‘the 1995 Act’), the property has been included on the Victorian Heritage Register.
This appears to be the fifth proceeding in this Court that follows from the inclusion of the property on the Registers. The other proceedings were brought in 2000 and 2002. However, this proceeding echoes some of the issues of the earlier proceedings.
Orders sought by Mrs Rajendran
Mrs Rajendran seeks an order that the second defendant, the Executive Director, forthwith remove the property from the Victorian Heritage Register. She also seeks declarations about her legal responsibilities in respect of the condition of the house, that:
She is not liable under s 64 of the 1995 Act for:
(a) removing or demolishing;
(b) damaging or despoiling;
(c) developing or altering;
(d) excavating;
all or any part of the dwelling house or the 1952 extension, at 664–666 Riversdale Road, Camberwell.
She also seeks a declaration that she is not liable under s 160 of the 1995 Act:
(a)for allowing the dwelling house or the 1952 extension at 664–666 Riversdale Road, Camberwell for falling into disrepair;
(b)for failing to maintain the dwelling house or the 1952 extension at 664–666 Riversdale Road, Camberwell to the extent that its conservation is threatened.
She also seeks a declaration that she is not liable under s 161 of the 1995 Act to carry out any works which are necessary to prevent any further deterioration in the condition of the dwelling house or the 1952 extension.
Mrs Rajendran’s case is that the Heritage Council has consistently and wrongly failed to refuse to exercise its powers under the 1995 Act by continuing to include the property on the Register and that an application to it to remove the property from the Register would be futile. She contends that the property should be removed from the Register by court order, having regard to:
(a) the lack of any guidance on the part of the Executive Director as to how or whether the house could or should be altered or extended;
(b) the refusal by the Executive Director of her third and fourth permit applications, notwithstanding the absence of a satisfactory Conservation Management Plan;
(c) the refusal of her sixth permit application, notwithstanding the information contained in the Conservation Management Plan with regard to the physical condition of the house;
(d) the imposition of condition 2 on the permit granted following her fifth permit application, which required her to commission a Conservation Management Plan for approval by the Executive Director as a condition precedent to the operation of the permit.
The power to make an order in the nature of mandamus requiring the removal of the property from the Register can only be exercised if it is established that the decision maker has refused to exercise her or her duty or power in accordance with the law.[2]
[2]Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39.
The plaintiff’s case
The plaintiff’s case was contained in her affidavit and the grounds of her amended originating motion. She was not cross-examined on her affidavit. The second defendant relied on the plaintiff’s exhibits and folder of materials, but led no oral evidence and did not file any affidavits.
The plaintiff did not challenge the inclusion of the property on the Register of Historic Buildings in 1991, but did submit that the Historic Buildings Council failed to comply with the requirements of the 1981 Act when recommending to the Minister that the property be added to the Register. The Council was entrusted with the task of collecting and examining evidence relating to the suitability of the property for registration. However, the plaintiff submitted that the Council did not resolve critical questions relating to the cultural significance of the house, its physical condition, its monitoring and its maintenance.
The plaintiff contended that the Historic Buildings Council would normally consider such issues by preparing a Conservation Management Plan. Such a plan would be prepared in accordance with the ‘The Burra Charter’,[3] which is the Australian ICOMOS (International Council on Monuments and Sites) Charter for Places of Cultural Significance. A Conservation Management Plan was not prepared until 2001.
[3]Adopted at the historic mining town of Burra, South Australia.
The plaintiff’s case is that the failure or refusal of the Historic Buildings Council or the defendants to make an appropriate examination of the property, as was required by the 1981 Act or the 1995 Act, prior to the preparation of a Conservation Management Plan in 2001, enables the inference to be drawn that they did not intend to do so. In those circumstances, the Heritage Council should have removed the property from the Register. The defendants had no knowledge of the current condition of the property or its cultural significance. As the physical condition of the property was bound to have deteriorated since the examination conducted during the preparation of the Conservation Management Plan, the defendants could not justify its retention on the Register. The property should be removed from the Register. But it can be assumed that the defendants do not intend to do so.
The plaintiff submitted that the grant of the permit for work on the property, in September 1991, did not detract from her contentions, because that permit was allowed to lapse when she and her husband became aware that the 1952 extension had been constructed on unconsolidated fill, which posed a threat to the stability of the extension and of the proposed extensions.
The plaintiff contended that an application to the Executive Director or the Heritage Council for the removal of the property from the Register pursuant to s 54 of the 1995 Act would be doomed to fail. It was obvious from the manner in which her permit applications had been dealt with that the Council would refuse such an application.
The property is the site of the first dwelling house designed by Robin Boyd and was occupied by the Boyd family from 1947 to 1959.
The property is described in the 2001 Conservation Management Plan, in the following terms:
The site is located at 664–666 Riversdale Road, Camberwell, and is accessed from that road. The site has a slight dog leg configuration with the section closest to Riversdale Road approximately 25 metres by 39.6 metres and the lower section 41 metres by 15.2 metres, including the drainage and sewerage easement.
…
The building fabric of the 1947 house remains substantially intact. Externally the modifications include: altered finishes; replacement of the pergola and a new roof and guttering installed and alterations to the brick grille work to the west.
…
The northern section of the 1952 additions has been severely compromised with a partial demolition of the building. The roof has been removed and there has been damage to the walls.
…
The two storey 1975 extension is located to the south of the earlier building. There appears to have been little modification to the external finishes or building fabric. Internal access was restricted.
In 1952 Mr Boyd extended the house by an extension to its northern end which added a living/sitting room with a kitchenette and small bathroom built on a concrete slab that he designed. The Conservation Management Plan described the 1952 additions as follows:
1952 Additions
Robin Boyd designed additions to the original house, which were constructed in 1952. As part of these works, the original carport was glassed in to become a link, which connected the original portion of the house to the northern part of these additions. In the northern section, was a living/sitting room with kitchenette, bedroom and small bathroom. An additional bedroom was built on the south side of the existing building,
The total area added was 69 m2. The additions were constructed of cavity brick walling on a reinforced concrete raft slab. John Murphy was again the builder and the cost was £1,000.
After the plaintiff and her husband purchased the property, they occupied it for about 15 years and it was also occupied on occasion by members of their family, tenants and the occasional squatter. In November 1990, an interim preservation order made under the 1981 Act was issued in respect of the property and, subsequently, it became a registered building pursuant to that Act. Under the 1995 Act, it became a registered place.
By the making of the first[4] interim preservation order of 22 November 1990, the house was suffering from wear and tear. A number of alterations, additions and make‑overs, both structural and otherwise, had been made to it and had altered its appearance.
[4]A second interim preservation order was issued in March 1991 after the expiration of the first order.
The plaintiff, her husband and their family did not live in Melbourne for much of the 1990s and, on their return, they submitted a proposal, supported by drawings prepared by their architect, to renovate and extend the house. They only required building approval from the Camberwell City Council to do that. However, once the interim preservation order was issued, they required approval of the Historic Buildings Council.
Part of the plaintiff’s case is that any application to remove the property from the Register would be doomed to fail, because of the pattern of previous decisions. To assess that submission it is necessary to set out some detail of the previous decisions made by the authorities concerning the property.
The first permit application
The first permit application, dated 17 March 1991, was to add rooms immediately above, and supported by, the 1952 extension. On 28 May 1991, the Permit Committee of the Historic Buildings Council refused the application on the following grounds:
(a) the proposal would affect the architectural and historic importance of the house; and
(b) no substantial evidence had been put forward to demonstrate the extent to which the application, if refused, would affect the reasonable or economic use of the building or land and would cause undue financial hardship to the owner in relation to the building or land.
The Permit Committee suggested that the plaintiff and her husband should apply for a heritage permit for a new building to be erected on the property to the north of the dwelling house, but separated from it, so as to define clearly the old and new buildings. It stated that a member of the Permit Committee would be willing to assist their architect with a new proposal.
The Director-General of the Historic Buildings Council and the Minister visited the property at the request of the plaintiff in August and September 1991.
The second permit application
The second application, dated 9 September 1991, was to construct two detached two‑storey units located to the north of the house. This application was successful, and a permit dated 13 September 1991 was issued. The permit had to be amended to modify the location of the new building so as to comply with the City of Camberwell planning permit. The amended permit was not issued until 13 August 1992.
On 2 October 1991, the Minister’s decision to include the property on the Register was gazetted.
However, after the plaintiff and her husband received the permit, they obtained engineering advice that the ground under the concrete slab on which the 1952 extension had been constructed, and the ground to the north of the house where the proposed units would be erected, consisted of uncompacted or badly compacted fill, in places more than six metres deep, and likely to necessitate very expensive pier and beam foundations for the units. That advice also raised the question of whether the 1952 extension, the floor of which was deflected and deformed as a result of the uncompacted fill, would be further damaged by the earthworks associated with the construction of the new pier and beam foundation.
The plaintiff and her husband elected not to proceed with the work allowed by the permit.
For most of the period between 1991 and 1999, the property was unoccupied and the plaintiff and her husband were away from Melbourne.
On 4 May 1999, the plaintiff was on site with a contractor, examining the northern end of the 1952 extension in order to assess the extent of the repairs needed to make that part of the roof weather-proof. The roof was not well secured and part of the metal sheets which comprised the new roof gave way and slid to the ground. This incident ‘activated’ officers of the second defendant and as a result, the plaintiff applied for a third time for a permit for all the alterations and extensions that she wished to make to the house.
The third permit application
The third permit application, dated 15 July 1999, was for permission to demolish the 1952 extension and construct an attached extension to the north of the dwelling house. By this time, the 1995 Act had replaced the 1981 Act and the Executive Director and Heritage Council bore statutory authority in respect of heritage properties. The permit application was refused on four grounds, which in summary were:
(a) The 1952 extension was an integral component of the significance of the registered place for reasons including the following:
(i) it was designed by Robin Boyd for his family’s use;
(ii) it illustrated his philosophy at the time regarding planning small homes for growth;
(iii) it illustrated his interest in new technology to overcome the problems associated with difficult ground conditions.
(b) The proposed extension was much larger and would be more bulky than the former Robin Boyd house. It would be out of scale with the registered building and have an adverse visual effect on the setting of the registered place.
(c) There were options, other than demolition, to overcome the concerns that were raised by the physical condition of the northern extension.
(d) The project brief was extensive and included specific requirements, including an enclosed pool, specific bedroom arrangements on the ground floor and servant accommodation. This would result in a proposed addition that would be so large as to require demolition of part of a registered building.
An officer of the Heritage Council, who prepared a report for the Executive Director on the application, noted that no Conservation Report had been prepared and that it was desirable that that should occur before any further work was proposed.
An appeal to the Permit Appeal Committee of the Heritage Council was unsuccessful.
The plaintiff contended that the Executive Director declined to offer further guidance as acceptable alterations and that consequently she was forced to make further applications based on guesses as to what would be acceptable. The Executive Director did not undertake a balanced consideration of the cultural significance of the building and her reasonable and economic requirements. Instead argument occurred as to whether the 1952 extension should be removed. The Executive Director did not have any information as to the basic cultural significance of the building or the reasons that the property had been registered as a historic building in the first place.
In September 1999 and March 2000, the Executive Director issued Show Cause Notices and Repair Notices requiring the weather-proofing of the 1952 extension and the replacement of the missing roof and also repairs to the walls and structural slab. The plaintiff sought guidance from the Executive Director as to what might be acceptable.
On 14 April 2000, Mr and Mrs Rajendran commenced proceeding 5090 of 2000 in this Court seeking relief against the Executive Director.
The fourth and fifth permit applications
On 25 July 2000, Mr and Mrs Rajendran applied for the fourth and fifth times for permits. The applications were numbered P 5041 and P 5042. Application P 5041 sought approval for demolition of the 1952 extension and replacement by a modified attached extension. Application P 5042 involved the retention of the 1952 extension and a smaller modified attached extension.
The fourth application, P 5041, was refused on the same grounds as the previous application.
An officer of the Heritage Council considering application P 5042 stated that a Conservation Management Plan should be prepared by a recognized heritage professional before the design progressed any further. That would provide policies to guide the design of the addition in consultation with the owner.
On 28 November 2000, a permit was granted subject to conditions in respect of application P 5042. Condition 1 was that:
The proposed changes to the interior of the registered place are not approved. Proposed internal restoration and alteration details are to be submitted for the approval of the Executive Director.
Condition 2 was that a Conservation Management Plan be prepared for the registered place. The condition stated:
The CMP[5] will be prepared by a recognised consultant in accordance with The Burra Charter and will include policies for the design of the addition, landscaping work, the treatment of the interior of the registered place and any other issues associated with subsequent approvals under this permit. The CMP is to be submitted for the approval of the Executive Director prior to the commencement of the permitted works.
[5]‘CMP’ is the Conservation Management Plan.
The plaintiff submitted that the permit was of no practical value as a Conservation Management Plan had not been prepared. She considered that, as the Executive Director did not have any ‘meaningful information at his disposal’ about the property, a permit ‘could [not] be relied on’. The plaintiff wondered why the Executive Director, in advance of the expensive and time-consuming task of preparing a Conservation Management Plan could not indicate what would be acceptable.
On 28 November 2000, the same day as the permit was issued, the Executive Director commenced proceeding 6226 of 2000, seeking an order pursuant to s 168(1) of the 1995 Act for the reinstatement of the house.
The Supreme Court orders of February 2001
Both proceedings came before Balmford J on 12 February 2001 and orders were made in each. In the first proceeding, 5090 of 2000, Balmford J ordered that Mr Tonkin, the Executive Director, at his expense, retain Mr Roger Beetson, or some other suitably qualified architect specialising in the preparation of Conservation Management Plans, to prepare and complete such a plan for the Robin Boyd house by 2 April 2001. The order set out requirements for the Plan. The order also stated that, upon receipt of a Conservation Management Plan, Mr and Mrs Rajendran must take whatever steps were necessary to prosecute or withdraw their appeal to the Heritage Council against Mr Tonkin’s refusal to issue a permit in respect of application P 5041 and their appeal to the Heritage Council against conditions imposed on the permit issued in respect of application P 5042.
In the second proceeding, 6226 of 2000, orders were made by consent. The orders recited in ‘Other Matters’ that Mr Tonkin had obtained a report from Perrett Simpson Pty Ltd, Consulting Engineers, dated 6 February 2001, concerning the works required to prevent further deterioration of the buildings known as the former Robin Boyd House.
The orders by consent in the second proceeding required that Mr and Mrs Rajendran:
must cause the works specified in Items 1 to 6 inclusive of the Perrett Simpson Pty Ltd report dated 6 February 2001 to be carried out forthwith.
and
If, on or before 29 June 2011, the Defendants:
(a) comply with each of the recommendations contained in Items 7 to 13 inclusive of the report dated 6 February 2001 of Perrett Simpson Pty Ltd (“the Simpson recommendations”); or
(b) comply with the recommendations contained in the conservation management plan, to be prepared pursuant to orders made this day in proceeding No. 5090/00, which relate to the subject matter of the Simpson recommendations, or
(c) comply with directions given by the Executive Director of the Heritage Council which relate to the subject matter of the Simpson recommendations.
whichever is the most appropriate, the Plaintiff shall forthwith discontinue this proceeding.
Mrs Rajendran expected that the Executive Director would cause an overall redevelopment strategy for the property to be prepared and accordingly she and her husband discontinued proceeding 5090 of 2000 and withdrew their appeals against the Executive Director’s determination of the fourth and fifth permit applications. However, no strategy was prepared.
The Conservation Management Plan of 4 September 2001
As a result of the proceedings before Balmford J, in September 2001 a Conservation Management Plan was prepared by Mr Roger Beetson.
The Conservation Management Plan is a lengthy document, but it is worthwhile referring to a few passages, which demonstrate the longstanding nature of the clash between the plaintiff’s needs for the property and the requirements of the Heritage Council. A particular focus of this Conservation Management Plan was the appropriate future management of the northern section of the 1952 additions.
The Conservation Management Plan stated that the integrity of the 1947 building and of the southern part of the 1952 addition was reasonable and should be conserved, while that of the northern part of the 1952 addition was poor and it was structurally unstable, requiring reconstruction. It stated that the legibility (ability to interpret) the cultural significance of the place was also compromised by: the dilapidated condition of some of the remnant original building fabric (in part caused by a lack of appropriate ongoing maintenance), and the extent of unsympathetic modifications, which had been undertaken since Boyd’s occupation. It recommended that the property be acquired by the State or other appropriate public organisation and be adapted as a house museum.
The report stated that the northern section of the 1952 addition required substantial and expensive conservation works, or reconstruction, to make it habitable. It added:
Whether reconstruction is warranted is an important issue and must be considered in the line of an overall development strategy where an effective and balanced [holistic] approach is taken to the site incorporating conservation objectives and the need for amenity of the owners/occupants.
On the basis that the place was likely to remain in private ownership in the interim, the Plan suggested that some limited redevelopment might be permitted for the purposes of achieving improved amenity for the occupants. However, any redevelopment should not further diminish the significance or the ability to interpret the place and should involve a careful and holistic approach, whereby the original 1947 portion of the house was conserved and the now, mostly derelict, northern section of the 1952 additions carefully recorded, dismantled and reconstructed. If required, a discrete new addition could be constructed in a manner which was sympathetic, but not imitative in style.
The Plan stated that s 73(1)(b) of the 1995 Act provided scope for the mediation of the requirements of the owner. Alterations to a site may be approved if it can be shown that ‘… if refused, (it) would affect the reasonable economic use of the registered place … or cause undue financial hardship to the owner in relation to that place’. The Plan stated:
Whilst the rest of the building with some basic remedial actions can be made habitable, the ability to use the northern section of the 1952 additions is currently, severely compromised and requires some not insubstantial financial outlay in order to make it habitable. The fate of this part of the building however has to be considered not only in light of the problematic integrity and condition of its building fabric, and the likely extent and cost of reconstruction and repairs to render it habitable and suitably presented, but also being cognisant of the owners’ requirements and the imperatives for the retention of cultural significance.
The plaintiff contended that the Conservation Management Plan, for the first time, placed necessary material before the Executive Director to consider applications in respect of the property. It also provided a standard of material or information that the Historic Buildings Council should have had when it recommended registration of the building to the Minister and that the Heritage Council should have had when it decided the plaintiff’s permit applications.
Although, the Conservation Management Report dealt with the physical condition of the house, the plaintiff submitted that, disappointingly, it avoided any responsibility for decision-making on the issues.
The sixth permit application
On 2 October 2001, Mr and Mrs Rajendran lodged their sixth permit application seeking approval for demolition of the 1952 extension and construction of a substantial new northern addition. By then, the Conservation Management Plan had been prepared.
On 29 January 2002, the sixth permit application was refused on grounds similar to the third application, including:
The proposal is not supported ahead of the retention and reinstatement of the 1952 extension.
The March 2002 Hearing
The second proceeding did not resolve and came on for hearing before Balmford J in March 2002 and ran for nine days.[6] The proceeding was brought by the Executive Director under s 168 of the 1995 Act, which gave the Court power, if satisfied that the Act has been or would be contravened unless restrained by the order of the Court, to make such order as it thought fit to remedy or restrain the contravention.
[6][2002] VSC 128.
The Executive Director sought orders for the reinstatement of the house so far as it was possible to its condition before 4 May 1999, when the plaintiff had either permitted or allowed a portion of the galvanised iron deck over the 1952 extension to fall off the house. The originating motion sought orders that the defendants perform nine categories of works.
Balmford J delivered judgment on 23 April 2002. Her Honour was satisfied that the removal of the roof and the partition contravened s 64 of the 1995 Act and ordered the performance of works to remedy those contraventions.
Her Honour noted the existence of the Heritage Fund in Part 7 of the Act, from which financial and other assistance might be given by way of a grant or loan to the owner of a registered place for the purpose of conserving any part of Victoria’s cultural heritage (s 140). However, her Honour noted that there was no material before the Court as to the state of that fund and as to whether assistance was readily available.
Many of the issues that her Honour considered have been raised again in this proceeding.
Eventually, by Court order, the Executive Director had works carried out to reinstate the galvanised iron roof to the 1952 extension.
On 25 June 2002, the Permit Appeal Committee confirmed the Executive Director’s decision refusing Mr and Mrs Rajendran’s sixth permit application.
On 20 December 2002, in proceedings 5901 and 6472 of 2002, Smith J set aside that decision on the ground that a member of the Committee should have disqualified himself on the ground of apprehended bias, that Mr and Mrs Rajendran were denied a fair hearing because they were not permitted to call evidence concerning the degree of heritage significance attaching to the 1952 extensions, and that the Committee erred in taking the view that it was not open to it to consider the issue of the degree of heritage significance other than that described in the Statement of Significance.[7] His Honour stated:
Finally I note that the applicants have filed a further permit application which does not involve demolition of the 1952 extensions. This would appear to be an alternative to the present application should the present application, if re-heard, be unsuccessful.[8]
[7]Rajendran v Tonkin [2002] VSC 585.
[8]Ibid [59].
Mrs Rajendran had some recollection of making a further application for a permit but was not sure that she had. She said that she was ‘totally exhausted and disheartened by the … train of events’.
She stated that neither the Heritage Council, nor the Executive Director had caused an overall redevelopment strategy to be prepared and neither had offered her any significant guidance as to how to redevelop the property. They had not utilised the property for any function detailed in the 1981 or 1995 Acts. She said that she was advanced in age, in poor health and wished to sell the property.
There was no evidence of any relevant event affecting the property occurring between 2004 and 2013.
The most recent statement of the plaintiff’s case prior to the commencement of this proceeding was in her letter of 16 September 2013 to the Executive Director for Statutory Planning and Heritage. She wrote that the house was suffering considerably from wear and tear when her family purchased it. Between 1991 and 2000 much of her negotiations with the Heritage authorities concerned whether the 1952 addition should be retained. The Executive Director thought that it should be, but took no serious steps to discuss the works required to reinstate the house or how they could be financed. When the house was registered, the Executive Director, having regard to its dereliction, should have immediately identified the need of its future conservation, preferably by means of a management plan. Instead, he had insisted that the house and property should not be compromised, yet had not indicated how that would be achieved. As a result, the Executive Director had caused her to suffer continuing financial harm. The absence of a viable management plan caused the property to be unsaleable other than by a fire sale.
The plaintiff requested the Executive Director to act immediately to resolve the situation, after conferring with her. She stated that as the Conservation Management Plan contemplated, a compromise had to be reached.
On 2 October 2013, the Acting Executive Director of Heritage Victoria wrote in reply that because of its significance, he must consider all of the elements of the property as significant, including the 1952 addition, when the assessing the permit applications. Should another permit application be lodged, it would be appropriate for him to consider the Conservation Management Plan. The Executive Director was unlikely to approve demolition of a property simply because an owner had failed to maintain it adequately. Neither the Department or the Heritage Council had any capacity to purchase the property.
The statutory framework — The legal obligations regarding permits
The Historic Buildings Act 1981
The relevant provisions of the 1981 Act were:
18. Council to make examination and recommendation to Minister
(1)The Council may, in the case of an application of any person in the prescribed form and shall—
(a) of its own motion;
(b)on the application of the National Trust of Australia (Victoria);
(c)on the application of the owner of the relevant building in the prescribed form; or
(d) at the direction of the Minister —
make an examination as to whether a building, other than a designated building, should be added to or whether a building should be removed from the register or that any alteration be made to any item on the register.
…
(7)In making an examination the Council must consider—
(a)the aesthetic, scientific, architectural, historic or social value of the building; and
(b)any relevant guidelines or statements of policy adopted by the Council.
26. Effect of registration of a historic building or land
…
(2)A person shall not in respect of any registered building or registered land—
(a)remove or demolish that building;
(b)damage or despoil that building or land or any part of that building or land;
(c)carry out any development in relation to the land on which that building is situated, or that land;
(d)alter that building; or
(e)subdivide the land on which that building is situated or that land—
or authorize any other person to do any of the above-mentioned things, except in accordance with a permit granted by the Council.
Penalty: 1500 penalty units or 2 years imprisonment.
(3)An owner of a registered building or registered land or the authorised agent of the owner may apply to the Council in the prescribed form for a permit—
(a)to do; or
(b)to authorize any other person under the direction of the owner to do—
any of the things set out in sub-section (2).
The Heritage Act 1995
Sections 18 and 19 provide for the Executive Director to establish and maintain the Victorian Heritage Register which must record all places registered under Part 3 of the Act.
Other relevant provisions of the 1995 Act include:
54 Amendment or removal of item on Heritage Register
(1)The Heritage Council may amend an item in or remove an item from the Heritage Register.
(2)Divisions 2 to 4 and this Division apply to an amendment or removal in the same way as those Divisions apply to a registration.
(3)Nothing in this section applies to the remains of a ship or article associated with a ship to which Part 5 applies.
64 Certain activities prohibited
(1)A person must not—
(a)remove or demolish; or
(b) damage or despoil; or
(c) develop or alter; or
(d)excavate—
all or any part of a registered place.
…
(2)A person must not—
(a)remove or demolish; or
(b) damage or despoil; or
(c) alter—
A registered object.
…
(3)A person must not relocate or disturb the position of a fixed registered object.
…
(4) Subsections (1), (2) and (3) do not apply to works or activities—
(a)carried out in accordance with a permit issued under this Part; or
(b) carried out in accordance with section 65; or
(c) for which the Heritage Council has determined that a permit is not required pursuant to Part 3 of this Part
67 Applications for permits
(1)A person may apply to the Executive Director for a permit to carry out works or activities in relation to a registered place or registered object.
73 Matters to be considered in determining applications
(1)In determining an application for a permit, the Executive Director must consider–
(a)the extent to which the application, if approved, would affect the cultural heritage significance of the registered place or registered object; and
…
(f)any matters relating to the protection and conservation of the place or object that the Executive Director considers relevant.
(lA)In determining an application for a permit, the Executive Director may consider–
(a)the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is–
(i)subject to a heritage requirement or control in the relevant planning scheme; or
(ii)included in the Heritage Register; and
(b)any other relevant matter.
…
(4)The Executive Director must determine an application within 60 days after its receipt unless that period has been extended by the Heritage Council under subsection (5).
160 Registered place or object – disrepair and failure to maintain
The owner of a registered place or registered object must not–
(a)allow that place or object to fall into disrepair; or
(b)fail to maintain that place or object to the extent that its conservation is threatened.
The plaintiff’s submissions
The plaintiff’s case was that since 1990, the condition of the house had deteriorated greatly, and it was now uninhabitable. But, she submitted that despite its condition, the Executive Director, having received the Conservation Management Plan, was still not prepared to decide the issues connected with the 1952 extension and chose instead to fend off her sixth application by repeating the previous refusals.
The order of Balmford J required a Conservation Management Plan. But, the Heritage Council had considered and decided permit applications and appeals without the assistance of such a plan. A plan did not have to be produced by a requirement of statute, but logic dictated that it should be.
The third and fourth permit applications were refused because there was no such plan. The Heritage Council decided the permit applications without knowledge or information as to why the property should be on the Register. The Heritage Council had not considered the correct issues.
The plaintiff’s case was also based on the propositions that the property was placed on the Register when it required serious attention and that it had not been properly authenticated as a registrable property. The property should thus be removed from the Register.
The plaintiff contended that the Heritage Council was under an ongoing duty to ensure that only heritage properties were included on the Register. The performance of that ongoing duty required the removal of the property from the Register. Because that duty was ongoing, her application for orders in the nature of mandamus was not out of time.
Mrs Rajendran contended that the removal of the property from the Register would ensure her fair treatment, after all her six permit applications and Court proceedings. She contended that it would be pointless for her to apply to the Heritage Council for the removal of the property, because such an application would be doomed to fail. The Heritage Council would simply say that it wanted the property to remain on the Register. She had never shrunk from a requirement to maintain the property.
She sought the declarations described at the commencement of this judgment to ascertain her obligations and liabilities in respect of repairs and maintenance of the property. The obligations under the 1981 Act differed from those under the 1995 Act. The condition of the property and its maintenance needs had altered over the last 24 years due to its deterioration.
The Executive Director’s submissions
The Executive Director submitted that the defendants had not refused to perform any duty required by law. He submitted that the power under s 54(2) of the 1995 Act to remove places from the Register could only be exercised after particular procedural steps had been taken. These included the nomination of the place for removal (s 23), the Executive Director’s consideration of the nomination and recommendation in respect of it (s 32), the public notification of the Executive Director’s recommendation (s 35), the opportunity for the making of submissions to the Heritage Council (s 38), and in some cases a hearing by the Heritage Council (s 40). The plaintiff had not asked for the performance of any of these procedural steps and they had not been taken. As a result, the Heritage Council could not remove the property from the Register. It had not failed to exercise a statutory power in accordance with law. No order in the nature of mandamus could be made.
Under the statute, the plaintiff bore the obligation of maintaining the physical condition of the house. The Executive Director had no statutory obligation to provide guidance as to how or whether a listed place could or should be altered or extended.
The plaintiff had shown no error in the Heritage Council’s determination of the permit applications. It was open to it to refuse the third and fourth permit applications in the absence of a Conservation Management Plan. The Act did not require the Heritage Council to prepare such a Plan and it had no formal status. In any event, a Conservation Management Plan had now been prepared.
The Executive Director had no statutory obligation to provide guidance as to how, or whether, a listed place could or should be altered or extended. The permit application decisions were made 15 years ago and an application for mandamus as part of judicial review was out of time. A proceeding under Order 56 for judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose, save when time was extended in special circumstances.
The declarations sought by the plaintiff should not be made. They concerned hypothetical matters. The defendants have not brought proceedings against the plaintiff alleging that she has contravened s 160 of the 1995 Act.
Consideration of submissions
The Court will not grant judicial review orders to perform a statutory duty, unless the body or decision-maker has actually or constructively failed or refused to perform the duty.[9] That failure is usually proved by a demand and the subsequent non-performance of a statutory duty. Mandamus will not command or compel the performance of a duty in a particular way if the decision-maker has a discretion as to how it should be performed.
[9]Re Media Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379.
These ancient principles were conveniently summarized in the context of modern statutes by Gillard J in Murdesk Investments Pty Ltd v Roads Corporation.[10] His Honour considered the obligation of an acquiring authority to comply with the Subdivision Act 1988 by submitting a plan of subdivision of the land acquired. A party affected by the acquisition sought an order in the nature of mandamus requiring submission of a particular plan of subdivision. His Honour decided that such an order could only be granted if it was established that there was a failure or refusal to perform a duty in accordance with law. His Honour stated the following well accepted propositions.
[10][2005] VSC 39.
First, as a general proposition, an authority would not refuse to perform its statutory obligation merely because it performed its duty in a way that was contrary to the views of the party affected by the decision.
Secondly, mandamus-type orders are made where there is a clear case of refusal to exercise the duty in accordance with the law. As a general rule, courts are not concerned with the merits of a matter.[11]
[11]Ibid [20].
Thirdly, if a statutory body unlawfully declines to perform its duty or power or misunderstands the nature of it, a mandamus-type order may be granted to command it to exercise its statutory obligations and powers in accordance with the law. In addition, the court can make a mandamus-type order where there has been an abuse of the exercise of discretionary power.
Fourthly, mandamus-type orders will be made if an authority, in the exercise of its discretion, does so for an improper purpose or has regard to irrelevant considerations or fails to take into account relevant matters. A statutory authority may purport to exercise its powers, but the court may conclude that it has not properly exercised its powers in accordance with the law. In those circumstances a mandamus-type order can be made to compel the statutory authority to perform its powers in accordance with the law.[12]
[12]Ibid [23].
Gillard J stated:
Where an authority is exercising a discretionary power and is therefore obliged to act bona fide, in my view the interests of those affected by the exercise of the power are matters that must be considered pursuant to the obligations to act in good faith and reasonably. What is required will depend upon the circumstances of a particular case, as the Westminster case demonstrates.[13]
[13]Ibid [31] (endnote removed). The Westminster case was Westminster Corporation v London and North Western Railway Co [ 1905] AC 426.
His Honour stated that in considering the interests of those affected by the exercise of a statutory power, the decision maker would be under a duty to discuss with the person affected the form and content of the proposal, in that case, a plan of sub‑division.[14]
[14][2005] VSC 39, [33].
In that case, his Honour determined that it had not been established that the Corporation had not acted bona fide in the sense that it ignored the plaintiff’s interests by not choosing one of its plans of sub‑division. His Honour referred to the correspondence between the parties over the years which showed a back and forth discussion concerning the form and content of the sub‑division.[15]
[15]Ibid [49].
In this proceeding, I do not consider that the plaintiff has established that the defendants have failed to perform a statutory duty according to law. The power to remove an item on the Heritage Register is governed, as s 54(2) states, by Divisions 2 to 5 of Part 3 of the Act, which is entitled ‘The Victorian Heritage Register’. Those provisions apply to the removal of a place from the Register in the same way as they apply to a registration. The effect of that for present purposes is that a place can only be removed from the Heritage Register after a number of steps have first been taken. The relevant provisions in Divisions 2 to 5 must be transposed to deal with the removal of the place an item that is on the Heritage Register. For an order to be made requiring the removal of a place from the Register would require, beforehand, the performance of a number of preliminary steps followed by particular outcomes. Those steps, when transposed for an application for the removal, rather than the inclusion, of a place include, in the case of Division 2, the provisions of s 23, which deal with nomination for removal from the Heritage Register, and recommendations of the Executive Director, under s 32, concerning the removal application. Division 3 deals with the decision of the Heritage Council once it has received the Executive Director’s recommendation. The Heritage Council may make a number of decisions including that the place should be removed from the Heritage Register.
It would therefore be very difficult for the Court to simply order the removal of a property from the Register, where so many preliminary steps have not been taken.
A case may occur where it is clear that there is no statutory basis for a property to be included on the Register or where there is a clear indication that the Executive Director or the Heritage Council will not perform their statutory duties. I am not persuaded that this is such a case. In 1991, the Executive Director issued a permit for the performance of works on the property. Although, the plaintiff was unable to act on that permit, its issuing does not suggest that the Executive Director or the Heritage Council have refused to perform their statutory duties.
I do not consider that there is a basis for concluding that the defendants would fail to perform their statutory duty to consider an application to remove the property from the Register. The defendants have the important public responsibilities of determining applications made under the 1995 Act fairly and impartially. They could not just act on the basis that because a place was on the Register, that all of it should necessarily remain on the Register indefinitely. They would be obliged to consider an application for removal on its merits. The application would have to be assessed individually. There is no basis in the evidence for concluding that they would fail to do that.
Nor am I persuaded that the original inclusion of the property on the Register of Historic Buildings was invalid. It is true that no Conservation Management Plan was in existence, but the 1981 Act did not require such a plan for its registering. The original decision to include the property on the Register was made almost 25 years ago, after extensive submissions were made about the property, and after the Minister and Director-General visited and inspected it. Under the 1981 Act, where an examination of the property was undertaken, the Council, and ultimately the Minister, had to be satisfied the building should be added to the Register based on a consideration of the aesthetic, scientific, architectural, historic or social value of the building. No Conservation Management Plan was required.
As no basis for the grant of orders in the nature of mandamus has been established it is unnecessary to decide if any such application would be out of time. However, in view of the many years since the property was included on the Register, my view would be that the time for directly or indirectly challenging that inclusion has long since expired. As previously noted, there has been no application made for the removal of the place from the Register.
So far as the other relief sought is concerned, I am not persuaded that the declarations sought by the plaintiff should be made. Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. In Bass v Permanent Trustee Co Ltd,[16] the High Court stated:
As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings.
[16](1999) 198 CLR 334, 356–7 [48]–[49].
There were no facts agreed or proved as to the present condition of the house, or its condition at previous times, that would enable the Court to make the declarations sought. All the Court could do would be to repeat the provisions of the legislation and that would be of no utility. There is no present demand on the plaintiff to make repairs. In order for the making of the declarations sought to be considered, there would need to be detailed findings made as to the condition of the property at relevant times and the possible obligations and liabilities that might be imposed on the plaintiff. No such findings were sought nor does the evidence before me permit them to be made.
Conclusion
This property has been the subject of disputes between the owners and the Historic Buildings Council and the Heritage Council over a quarter of a century. The disputes arose from the restrictions imposed on the alteration of the property following its registration. These restrictions significantly limited Mr and Mrs Rajendran’s rights as private owners. They owned the property for about 17 years before it was included on the Register as an historic building. Whilst the registration of the property was made for the common good of the people of Victoria, by preserving part of the State’s heritage, the plaintiff’s rights must not be forgotten. The Conservation Management Report in 2001 referred to the need for a compromise between the Rajendrans and the Heritage authorities. It may not be beyond the means of appropriate mediation for an outcome to be reached that satisfies the statutory obligations of the defendants, but which also enables Mrs Rajendran to achieve her wish to sell the property at a fair price. Consideration should again be given to the possibility of a compromise.
The proceeding is dismissed.
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